Daily Media Links 8/9: Judge Kavanaugh and freedom of expression, To Limit the Second Amendment, New York Attacks the First, and more…

New from the Institute for Free Speech

Regulating the Internet: A Dangerous Trend for Free Speech

By Luke Wachob

The First Amendment is facing a new threat in state legislatures. A spate of bills that would regulate political and issue advertising on the Internet are jeopardizing free speech. Promoted under the guise of “transparency” or as a response to foreign meddling in U.S. elections, these complicated proposals can be difficult to understand – and even harder to follow. If successful, the end result will be a less vibrant democracy as Americans who fear for their privacy in these polarized times choose silence. Fortunately, the reasons to oppose restrictions on Internet speech are simple and straightforward…

1) The Internet is an Empowering Force for Democracy…

2) Regulation Chills Speech…

3) Regulation Stifles Innovation…

4) Different Media Call for Different Rules…

5) Internet Speech Reaches Large Audiences at Low Cost…

6) Most States Already Regulate Online Political Activity – and Prohibit Foreign Interference…

The Internet is the modern public square. It is where Americans go to share their views and seek out the views of others. It is where they go to organize marches, petitions, and get-out-the-vote drives. It is one of the main sources for information about government, public policy, and elections. In order for the Internet to continue to organize and motivate Americans in public life, it must remain free from heavy-handed regulation. Efforts to regulate the Internet threaten both our democracy and our First Amendment rights.

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Be on the Lookout: Four Red Flags in Bills that Will Chill Online Speech

By Eric Peterson

1) Regulating “Social Media”. If a bill purports to regulate social media, it deserves careful review. Social media is a vital outlet for free speech and press rights. Many measures aimed at regulating social media impose severe burdens. New laws in Maryland and Washington, for example, forced Google to temporarily refuse all state and local political ads in those states. Smaller websites and platforms may never be able to afford the associated compliance burdens…

2) Applying TV and Radio Requirements to the Internet. Many proposals seek to import existing regulations on TV and radio to ads on the Internet. This is unwise because of the space and time restrictions for many online ads. Such requirements also ignore the fact that radio and television ads are usually aired in standard 30-second formats while online ads are rapidly evolving…

3) Regulating “Qualifying Paid Digital Communications”. Maryland uses this definition in its legislation regulating Internet speech. That new law regulates online speech visible to only 500 individuals. Since almost all online ads may be “seen” by 500 or more people, whether or not they are clicked on or actively viewed, this definition would cover an almost limitless amount of grassroots political speech. Worse, the Maryland definition covers speech that “relates to” even a prospective candidate – not just an actual candidate…

4) Expanding “Electioneering Communication” Definitions. Some states are attempting to regulate online speech by expanding existing “electioneering communication” definitions to include “digital communications” or the Internet. Generally, “electioneering communications” are speech mentioning a candidate within 30 or 60 days of an election. Typically, ads about issues fall under “electioneering communication” regulations. At the federal level “electioneering communications” only apply to TV and radio, but not online ads. If a state applies an expanded definition to the Internet, it will catch speech in YouTube videos, Tweets, and Facebook posts.

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In the News

Republican National Lawyers Association: The Importance of Protecting the Privacy of Non-Profit Donors

By Josh Goodman

The IRS recently defended the privacy rights of non-profit organizations by declaring they would no longer collect the names and addresses of donors. Detractors of this new policy, mainly coming from the far-left, argue this will lead to an increase in foreign spending and so called ‘dark money’ in American politics. The Institute for Free Speech’s Luke Wachob explains in The Hill why this complaint is not based in reality.

“First, nonprofits can accept money from foreign sources, but they are legally prohibited from using it to support the election or defeat of candidates. The ban also applies to broadcast ads that mention the name of a candidate in the time near an election.

Second, a donor name and address does not tell you whether it is a U.S. citizen or green card holder. Many Americans live abroad, and many people in the United States are not citizens or legal permanent residents.”

Free Speech

Reason: Popehat’s Ken White: ‘Free Speech Is in Just as Much Danger from Conservatives’

By Nick Gillespie & Paul Detrick

“When we buy into this narrative that free speech is a conservative value and censorship is a liberal value, we basically invite this chasm where the First Amendment and free speech values steadily get less and less support,” says attorney Ken White, who’s the proprietor of the legal blog Popehat, the host of the Make No Law podcast, and a contributing editor at Reason. “Saying that the First Amendment is conservative is historically completely illiterate. It’s [protected] mostly progressives from being suppressed through most of the twentieth century.”

Reason’s Nick Gillespie sat down with White, who spends his days as a criminal defense attorney at Brown White & Osborn in Los Angeles. They talked about Trump’s nominee for the Supreme Court, the dismissal of director James Gunn from the Guardians of the Galaxy series, what limits should be put on employee speech inside and outside the workplace, and his libertarian views on law and society.

Supreme Court

SCOTUSblog: Judge Kavanaugh and freedom of expression

By Timothy Zick

As Jonathan Adler recently observed, Justice Anthony Kennedy’s “expansive conception of the First Amendment’s protection of freedom of speech is among his most important judicial legacies, marking his jurisprudence from his first days on the Court to his last.” Although it is not clear whether Judge Brett Kavanaugh would compile a similar record on the Supreme Court, we can make a few tentative predictions based on his record in the U.S. Court of Appeals for the District of Columbia Circuit. (Of course, all of the usual caveats associated with predicting the behavior of lower court judges once elevated to the Supreme Court apply.) This post reviews cases in which Kavanaugh either joined or authored opinions concerning freedom of speech and, to a lesser extent, other First Amendment rights (specifically, press and petition). It excludes decisions and opinions in the area of campaign finance, which were discussed in a prior post.

Real Clear Politics: Kavanaugh Empowers Pro-Choice Democratic Women

By Daniel Shuchman

In 2005, Emily’s List, an advocacy group that claims to have raised over $500 million exclusively to support female Democratic politicians who favor abortion rights, sued the Federal Election Commission challenging new regulations limiting how non-profit groups raise money and spend it to advance the causes and candidates they believe in. The regulations at issue in Emily’s List v. Federal Election Commission had the effect of “substantially restricting the ability of non-profits to spend money for election-related activities such as advertisements, get-out-the-vote efforts and voter registration drives.” Emily’s List argued that these regulations violated the First Amendment of the Constitution.

The case reached the United States Court of Appeals for the District of Columbia in 2009. In a sweeping opinion whose significance is often obscured by the fame accorded other campaign finance cases like Citizens United (decided by the Supreme Court the following year), Judge Kavanaugh wrote for the court that non-profit groups, like individuals, have the right to spend unlimited amounts of money promoting issues or candidates of their choice…

The Supreme Court had long made itself clear, according to Judge Kavanaugh: Individuals have the right to spend whatever amounts they desire to advance their views on issues and political candidates. To place any limit on a group of individuals who choose to work together in common cause with like-minded citizens by forming a non-profit group such as Emily’s List is “clearly a restraint on the right of association” and Constitutionally impermissible.

Judge Kavanaugh’s concern was the principle of free expression, not the identity, agenda or relative voice of the speaker, which his opinion scarcely mentions. 

The Courts

National Review: To Limit the Second Amendment, New York Attacks the First

By David French

It’s using a combination of consent decrees and warning letters directed at financial institutions to coerce them into cutting of business relationships with the NRA.

Cuomo’s intentions aren’t hidden. He’s on a crusade. “If I could have put the NRA out of business, I would have done it 20 years ago,” he said earlier this week. He followed up with this pithy statement: “I’m tired of hearing the politicians say, we’ll remember them in our thoughts and prayers. If the NRA goes away, I’ll remember the NRA in my thoughts and prayers.”

Clever. But when statements like this are accompanied by state action, there’s another word that applies – unconstitutional…

As the Second Circuit has recognized, there is a difference between “permissible expressions of personal opinion and implied threats to employ coercive State power to stifle protected speech.” When “comments of a government official can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request,” a First Amendment claim exists.

It simply strains credulity to argue that a financial regulator’s letter to the financial institutions it closely regulates urging those institutions to consider “risk management” when dealing with the NRA is nothing more than robust debate. Indeed, the letter at issue is explicitly phrased as offering regulatory “guidance.” The NRA also claims this “guidance” – combined with other state actions – is making corporations fear reprisals if they continue to do business with the NRA…

New York has filed a motion to dismiss the NRA’s claims, but it is imperative that New York’s actions be subject to full and fair discovery.

Congress

The Hill: Kavanaugh nomination a make or break moment to repeal Citizens United

By Rep. Brad Schneider (D-Ill.) and Former Rep. Ron Barber (D-Ariz.)

President Trump’s nomination of Brett Kavanaugh to the Supreme Court could cement the court’s tilt in favor of big money and corporate special interests for a generation. This should serve as a clarion call for our elected officials and citizens to end the out-of-control campaign spending that is corrupting our governance. Congress must step up and pass legislation to return transparency and accountability to our political process…

First, we must restore transparency to our electoral system. The DISCLOSE Act would do so by requiring Super PACs to report campaign contributions of $10,000 or more within 24 hours, requiring groups to disclose campaign contributions to their members, and requiring lobbyists to disclose their political expenditures.

Similarly, Americans should have the right to know who is behind campaign advertisements. The Keeping Our Campaigns Honest Act would direct the Federal Communications Commission to strengthen its sponsorship identification rules to require political advertisements to include the names of significant donors.

And as we limit the influence of big money donors, it’s also important to boost the voices of average Americans. The Government by the People Act would incentivize voters to engage in our political process. It would grant a 50 percent refundable tax credit on individual congressional House campaign contributions, and create a pilot program to provide voters with a $50 “My Voice Voucher” for contributions.

Online Speech Platforms

Washington Post: Strategists raise alarms about Facebook delays in approving Hispanic political ads

By Michael Scherer and Elizabeth Dwoskin

Political strategists say recent moves by Facebook to secure its powerful advertising engine are hampering their ability to communicate with Hispanics and Spanish-speaking audiences ahead of the midterm elections.

New procedures adopted by Facebook in response to Russian meddling and allegations of racially discriminatory ad practices often require several days for the company to review political ads targeted to ethnic groups, while ads that target broader audiences are approved immediately, said strategists for three liberal organizations, Priorities USA, Latino Victory and Win Dem PAC…

The strategists say the delays hurt their ability to reach and engage voters, since ads are often created and posted in the same day, sometimes in response to news events. Priorities alone plans to spend $50 million this cycle on digital advertising to support Democratic House and Senate candidates, and mobilizing the fast-growing Hispanic population is a focus for the party in several key battlegrounds.

“This is clearly a flaw in their system that is inadvertently punishing good actors who want to advertise on the platform,” said Josh Schwerin, the communications director for Priorities…

Several political ad buyers contacted by The Washington Post say ads that try to reach specific demographics can take three or more days to be approved on the platform. In some cases, identical ads for a broader audience are approved immediately.

“It impedes the ability of organizations that are trying to target minority voters by not being able to target an ad by language spoken,” said Abby Loisel, the digital director of Latino Victory. “While they might be approved after a while, that means you will be less able to be quickly adaptable.”

Mic: Left-wing news sites censored on Facebook aren’t in favor of banning Alex Jones either

By Chauncey Alcorn

Several popular left-leaning and progressive content creators on Facebook have either been booted from the site with no clear explanation as to why, or have seen their traffic take a nose dive after being erroneously flagged as fake news. Now, some are reluctantly speaking out against Jones’ being censored…

“I feel like this is going to lead to a very slippery slope, and a dangerous path for freedom of speech and information exchange in general,” alternative news site founder Jason Bassler told Mic. “It’s not a beneficial thing in society for any type of censorship of free speech, regardless of how outlandish or crazy.”

Bassler is the co-founder of the Free Thought Project and Police the Police. The latter is a police brutality watchdog news page launched in 2012 that creates and shares stories and memes critical of corrupt and abusive officers…

Combined, these two pages have more than 5 million followers, yet traffic on both pages has tanked in 2018, according to Bassler, in part due to changes in Facebook’s search and newsfeed algorithms. Those changes were designed to limit the proliferation of native Facebook news sites and alleged fake news.

“In 2017, Police The Police was reaching 12-15 million people a week on average,” Bassler said. “Now we’re lucky if we’re pulling in more than 4 million a week. We’ve actually had to fire our writing staff. Now we only have a bare boned crew.” …

“I don’t think it just hurts conservatives,” Bassler said. “The left is cheering this on, when historically the left is usually the side cheering for free speech.” …

“Should Facebook and Google decide what’s true and false?” William Harader, administrator for a previously penalized Facebook page called Galactic Free Press said to Mic via Facebook Messenger.

Political Parties

Wall Street Journal: Trump’s Ultimate Disruption

By Daniel Henninger

It is no doubt true that Mr. Trump, with his insistently constant public presence, has disrupted the already weak standard model of America’s political parties as arbiters of candidates and ideas…

[T]he Koch feud is a portent of more fractures in the party system. Mr. Trump tried to dismiss the Kochs as “a total joke in real Republican circles.” One has to ask: What exactly are “real Republican circles”? Or for that matter, real Democratic circles?

The Trump camp has taken to insisting that Mr. Trump personally embodies both the Republican Party and conservatism. The only people largely forced to opt in to this choice are elected Republican politicians. But what about anyone else who self-identifies as a right-of-center voter? …

Rather than a one-off event or joke, the Kochs look more like a phenomenon emerging on the right and left, including MoveOn, Daily Kos, Breitbart, Black Lives Matter, Club for Growth and Netroots Nation.

Independent and ideological groups are increasingly setting norms for party-affiliated politicians, not the other way round. The parties look more and more like inert vessels or financing institutions…

The traditional parties provided stability and predictability, a comfort level. Their competitors-from Trumpism to Netroots-now offer instability and perhaps a period of chaos. Some would call this healthy democratic ferment. Others may doubt the health benefits.

The States

CityLab: More Cities Want to Embrace ‘Democracy Vouchers’

By Tanvi Misra

In 2017, Seattle rolled out “democracy vouchers”-a program through which it would give eligible residents vouchers totaling $100 to donate to the local candidate of their choice. Candidates who opted in to the program had to agree to strict guidelines on how to spend the money they received…

Seattle’s measure also faced legal obstacles after a libertarian law firm sued on behalf of property owners. Citing Supreme Court precedent, it argued that the program was “grossly inefficient, wasted taxpayer money,”and violated the First Amendment because residents’ taxes were going to fund candidates they didn’t support. These arguments are along the lines of what Albuquerque activists are hearing from opponents, and what proponents of “democracy vouchers” have always come up against.

In a 2011 op-ed in The New York Times, for example, Lawrence Lessig, a professor of law at Harvard, vouched for democracy voucher programs saying, “It’s also my money, or your money, used to support the speech that we believe: this is not a public financing system that forces some to subsidize the speech of others.” In response, a Cato Institute blog post called his argument “old wine in new bottles, barely masking the fact that it puts the government in the business of promoting political speech.” …

The attempts to get “democracy vouchers” on the books in Albuquerque and Austin follow efforts by local governments including those in Maryland, Oregon, and California to tweak campaign finance at the local level. Even Missouri, a state that typically votes conservative, hopped on the bandwagon. In New York, there are calls to use the city’s ongoing charter revision to strengthen public financing mechanisms further. 

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