The Hill: Remembering a major victory for free speech, 40 years later (In the News)

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.

Filed Under: In the News, Published Articles, Thomas Wheatley

Washington Post: Maryland flunks freedom of speech (In the News)

By Thomas Wheately
The Institute for Free Speech recently released its first Free Speech Index, which grades states on their contribution-limit laws for candidates, political parties and political action committees. Virginia scored at the top of the index, earning a perfect A-plus rating. Maryland, however, scored an F, placing the Free State fifth-to-last on the index…
Virginia imposes no limits on political giving. This includes unlimited giving to all state candidates by individuals, committees, parties, unions and corporations. Only four other states in the union share this uniquely unbridled freedom to give, and they’re as politically diverse as they are geographically: Alabama, Nebraska, Oregon and Utah. Six more place no limits on individual donations.
Maryland, on the other hand, imposes extreme restrictions on political giving. Although most states place no limit on how much an individual can give to a party, Maryland takes two bites at the free-speech apple by limiting individuals’ ability to contribute to parties and limiting the amount of support that parties can provide their candidates. And that limit isn’t very high. Individuals, committees, parties, unions and corporations may give only up to $6,000 per four-year election cycle to any candidate for state office. (Before 2013, that limit was even lower at $4,000.) To Maryland’s credit, however, family members of a candidate may make unlimited contributions to their loved one’s campaign.

Filed Under: In the News, Published Articles, Thomas Wheatley

The Hill: Supreme Court can reinforce free speech with Rod Blagojevich case (In the News)

By David Keating and Thomas Wheatley
[F]ederal courts around the country are interpreting two Supreme Court decisions differently…
When Supreme Court Justice Sonia Sotomayor was a Second Circuit appeals court judge, she explained how to resolve the high court rulings. Proof of an express promise isn’t necessary when the payment goes in the pocket of the official, such as cash or a gift.
But if a campaign contribution is made, the First Amendment demands a higher standard of an explicit promise. That’s common sense, but the judge in the Blagojevich trial failed to give the jury such instructions. Using a lower standard for criminal prosecutions for campaign contributions would deter many from donating or running for office. It would enable more politically-motivated criminal prosecutions that interfere with election campaigns.
In 2014, the Supreme Court said that the “First Amendment safeguards an individual’s right to participate in the public debate through political expression and political association. When an individual contributes money to a candidate, he exercises both of those rights.”
In that context, it makes sense to provide additional protections for campaign contributions. Not distinguishing the two gives politically-motivated prosecutors too much leeway, and could subject even small donors to criminal liability.

Filed Under: David Keating, In the News, Published Articles, Thomas Wheatley

Maine Wire: Maine’s campaign laws hurt a free press (In the News)

By David Keating and Thomas Wheatley
Under Maine campaign law, an independent expenditure is “any [independent] communication that expressly advocates the election or defeat of a clearly identified candidate[.]” Even worse, the law assumes any mention of candidate in any communication within 28 days of an election is an independent expenditure. Independent expenditures over $250 must be reported to the government…
To get the exemption as a periodical publication, a publication must have been publishing “for at least the previous twelve months” on a “variety of topics[.]” Alternatively, outlets must have “a record” of publishing such content and persuade a group of bureaucrats to decide they will “continue to be published” after the election. In addition, exempt media can’t be owned or controlled by a party, PAC or candidate, and must publicly disclose “the names of the persons or entities who own, control, and operate” it…
The statute requires the press be exempt from reporting requirements, but only vaguely discusses which entities fall under the exemption. That leaves the Commission with broad discretion. Yet rather than creating a wide exemption that maximizes free press rights, the Commission has instead elected to adopt demanding criteria that threaten the creation of new media sources.

Filed Under: David Keating, In the News, Published Articles, Thomas Wheatley

The Hill: Did you enjoy ‘Fire and Fury’? Thank Citizens United for it (In the News)

By David Keating and Thomas Wheatley
Wolff’s book is indisputably speech funded by a corporation and is scathingly critical of President Trump. Had the Citizens United turned out differently, the Federal Election Commission (FEC), with just an administrative sleight of hand, could have constitutionally placed Wolff’s publisher in the agency’s crosshairs.
It does not matter the book was released in January, far removed from any primary or general election. Express advocacy paid for by a corporation’s general treasury funds was banned regardless of proximity to an election. Although the book makes no explicit calls for voters to support or oppose Trump, it could easily be argued that it is the “functional equivalent” of express advocacy because it “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” And Trump has already declared his candidacy for 2020.
What’s more, when deciding whether a communication constituted express advocacy, the FEC, prior to Citizens United, looked for whether the communication took a position on an “office holder’s character, qualifications, or fitness for office.” …
Although Citizens United concerned an electioneering communication, the broader ban on corporations using general treasury funds for express advocacy struck down by the Court applied to all forms of media – including books.

Filed Under: David Keating, In the News, Published Articles, Thomas Wheatley

Washington Post: West Virginians should reject a misguided call for less political speech (In the News)

By Thomas Wheatley
A 2013 study from the University of Massachusetts, for example, studied the negative effects of public disclosure laws on individual willingness to give and found startling results. “When some citizens believe that their contributions will be posted publicly on the Internet,” concluded the study, “they tend to cut back on donations or not give at all.” Individual citizens are especially cognizant of what the study calls “social influence theory,” and are vastly more likely to be fearful of public backlash in a way corporations are not. In West Virginia, even a $1 contribution is published online for all the world to see. In other words, enacting overbroad disclosure laws to diminish corporate influence in elections – as West Virginia has – may in fact aggravate the disparity…
Second, there’s little evidence that “getting the money out of politics” actually yields better government. Another 2013 study from the Institute for Free Speech, using data from the Pew Center on the States, found “no relationship between a state’s regulation of corporate or union contributions to candidates and the quality of management in a state.” In fact, of the 21 states that prohibited corporate contributions entirely, only three were considered “above average” in state management. Eight were deemed “below average.” Meanwhile, of the five highest-scoring states, three had no limit on election contributions by corporations.

Filed Under: In the News, Published Articles, Thomas Wheatley

Daily Caller: President Trump And The Issue Of Free Speech (In the News)

By Thomas Wheatley
Donald Trump is hardly the first public official to want to get back at his critics using libel laws. If he sues the publisher of “Fire and Fury,” the book on his presidency, he’ll likely fail. It’s worth revisiting why…
In an opinion by Justice William Brennan, the court struck down Alabama’s law and instituted a new legal requirement of “actual malice” for defamation of public officials, a standard now familiar to all First Amendment lawyers…
Sure, the Times’ advertisement was not factually precise, but imagine if it had to be. Every Tweet or Facebook comment containing a single falsehood about a public official could be subject to ruinous liability. Citizens and groups would dare not speak and the discourse essential to our republic’s survival would grind to a halt…
Citizens United v. Federal Election Commission reinforced the vast speech protections enshrined into federal law by decisions like New York Times v. Sullivan. Although Sullivan dealt with libel law where Citizens United concerned an outright ban on speech, the relationship between the two is clear: Had the Court in 1964 decided the Times, a corporation, did not have the same free speech rights as an individual, defeating Jim Crow would have proven that much harder.

Filed Under: In the News, Published Articles, Thomas Wheatley

Washington Post: D.C.’s Fair Elections Act would give more power to the already powerful (In the News)

By David Keating and Thomas Wheatley
Not only is Mayor Muriel E. Bowser (D) right in calling it a waste of money, but also the measure is nothing more than a grand experiment likely to turbocharge the power of special-interest groups and incentivize fraud by candidates.
For starters, the proposal is biased in favor of a new form of political entity called a “Fair Elections Committee.” The fine print allows for contributions from “membership organizations” (labor unions) to count as small-dollar donations. Candidates who receive financial support from a “membership organization” may still receive public financing, but a candidate who gets a similar donation from, say, a small business won’t. The provision was so blatantly discriminatory that the ACLU of the District of Columbia rightly opposed that provision, saying, “Labor unions do not have greater First Amendment rights than other kinds of organizations.” …
In addition, the measure is obviously an exercise in incumbency protection. An incumbent with an established donor base and prior familiarity with D.C.’s political machinery would have a clear advantage over a political newcomer. The Fair Elections Act exacerbates that advantage by affording incumbents the chance to raise tax-matched donations earlier than challengers who emerge later in the election cycle.

Filed Under: David Keating, In the News, Published Articles, Thomas Wheatley

New York Post: An Orwellian tale of ‘campaign finance reform’ (In the News)

By Thomas Wheatley
Investigators from the state Department of Justice called the “previously unknown and secret investigation into a broad range of Wisconsin Republicans” John Doe III. The scheme secretly collected hundreds of thousands of Republicans’ personal emails…
The scope of John Doe III was shocking – in fact, DOJ officials could not “discern any limit” to it. More egregiously, the sleazy scheme seemed motived by partisanship…
Americans are led to believe that more government regulation of election campaign speech is key to ensuring fairness. John Doe III says otherwise.
Law-abiding citizens were exercising their free-speech rights. But that was enough for Big Brother thugs to compile a secret dossier on all aspects of their lives.
A vague and complex campaign finance law enabled these abuses. Wisconsinites learned this lesson via an especially terrifying abuse of power and reformed their laws accordingly. Other states would do well to learn from them.

Filed Under: In the News, Published Articles, Thomas Wheatley

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