Last year, the Institute for Free Speech pointed to several trends likely to impact Americans’ political speech rights. On the whole, the most significant threats were prevented by broad coalitions of advocacy groups working to defend First Amendment freedoms. Unfortunately, efforts to restrict speech, press, assembly, and petition rights will not subside in 2021 – especially with a new occupant in the White House and new majorities in Congress with a disturbing lack of respect for the First Amendment. However, 2021 has already brought new opportunities to defend and strengthen First Amendment protections.
An important question in 2020 concerning the future of First Amendment freedoms was whether the Supreme Court would hear a case asking it to uphold long-held precedent protecting the right to associate privately.
In early January, the Court agreed to review the cases of two nonprofit charities seeking protection against California’s demand that the groups hand over lists of their donors to state authorities. The cases point to precedent set during the civil rights era, when the Court prevented Alabama from compelling the NAACP to reveal its donors to opponents in state government.
Because of their similarities, the Court combined the nonprofits’ challenges into a single case, Americans for Prosperity Foundation v. Bonta. The Institute for Free Speech filed an amicus brief urging the Court to hear the case, and our legal team filed another brief in support of the nonprofits now that the Court has granted review. Arguments in the case are scheduled for April 26.
The outcome of this case will be pivotal in the seemingly never-ending struggle between nonprofits and government officials who would like to expose groups’ supporters. As expected, state legislators introduced a number of bills aimed at such speech-chilling exposure last year. Most of these proposals failed to become law, largely due to nonprofits across the ideological spectrum joining together to speak out against attacks on their First Amendment rights. Unfortunately, many of these failed proposals have been reintroduced in 2021, and new efforts will crop up as legislators inevitably become frustrated with speech from groups they don’t like and pursue donor exposure as a means of silencing their policy opponents.
Failed attempts to expose civic organizations’ supporters will be reintroduced and prioritized at the federal level as well. Democrats in Congress, now in control of both chambers, have made such legislation a top priority. The House already passed H.R. 1, which includes the “DISCLOSE Act,” an aggressive effort to force groups that speak about legislative and policy issues to publicize the names and addresses of their supporters. The Senate is currently debating its version of H.R. 1, known as S. 1. The DISCLOSE Act has also been resurrected as a separate bill in both the House and the Senate. Not to be outdone, President Biden has made clear his support for the anti-privacy agenda pushed by his allies in Congress.
Internet Speech Regulation
H.R. 1 and S. 1 also include the deceptively-named “Honest Ads Act,” which would impose burdensome regulations on internet speech only tangentially related to politics or government. The Honest Ads Act explicitly regulates communications “relating to… a national legislative issue of public importance,” an almost limitless category of speech. Speakers that dare utter such messages would be subject to onerous reporting and disclaimer requirements. Facing burdensome and complex regulation, many groups will self-censor, depriving Americans from hearing a diverse array of voices on important issues.
Platforms’ Ad Policies
The last few years have taught us that legislation may not be necessary to severely burden free speech online. Lawmakers have continued to demonstrate their capacity to coerce companies into restricting political speech by publicly berating CEOs and threatening crippling regulation. Partially in response, Twitter banned all political ads in 2019, and Facebook imposed multiple temporary bans on political ads last year. Still, some Democrats in Congress have complained that temporary pre-election ad bans don’t go far enough because they allow the spread of organic (unpaid) content. In their view, Americans simply can’t be trusted to determine the veracity of political statements they encounter online. Now that one party controls both Congress and the White House, expect tech companies to be even more deferential to the demands of the empowered party.
The most consistent threat employed by lawmakers against social media companies is amending or completely eliminating Section 230 of the Communications Decency Act. The law enables operators of websites to allow user-generated content without assuming liability for everything those users post. In an effort to resolve conflicting case law in the 1990s, Section 230 clarified that content moderation practices do not affect the law’s liability standards. Without Section 230, managing a social media platform would become legally untenable, and everything from comment sections under news articles to all manner of discussion forums would largely disappear from the internet.
Simply put, Republicans believe the law gives tech companies too much freedom to moderate content on their websites. Democrats would like to change the law in order to force companies to disallow more content.
Last year, President Trump issued an executive order attempting to grant federal agencies the power to enforce vague standards of political neutrality online, with exposure to liability for users’ speech being the punishment for noncompliance. With President Biden in office, Republicans in Congress will likely shy away from seeking to give executive agencies such broad power over online speech, showing the shortsightedness of previous legislative efforts.
President Biden has said that “Section 230 should be revoked, immediately.” Gina Raimondo, the Secretary of the Commerce Department, said during her confirmation hearing that she would look into changing the law through the National Telecommunications and Information Administration. Recently, House Homeland Security Committee Chairman Bennie Thompson (D-Miss.) warned tech companies of likely changes to Section 230, saying, “If the companies don’t assume the interest in policing their own platforms, then you leave government no choice.” And in February, Senate Democrats introduced a bill removing Section 230’s speech protections from online ads. Ultimately, this would lead to less political speech on internet platforms.
Depending on where the debate goes from here, Americans’ ability to speak online may suffer.
Politicians will often cite their desire to hold platforms accountable for “misinformation” when declaring the need to change or revoke Section 230. But most false speech, particularly in the context of political debate, is protected by the First Amendment, for good reason.
Everyone prefers accurate information. But would anyone expect a unanimous decision after asking ten Republicans and ten Democrats to determine the accuracy of a political statement on a hot-button issue? Of course not. Social media companies’ attempts to placate politicians who demand they remove all misinformation have satisfied precisely no one.
When platforms’ ham-fisted actions come in response to ceaseless threats of government action, First Amendment concerns are implicated, but private companies do have every right to at least attempt to remove all false speech while leaving all legitimate discourse unscathed. The government has no such right, and, as social media companies have demonstrated, moderating content in a way that even most Americans would view as fair and objective is impossible.
This hasn’t stopped elected officials from exploiting partisan vitriol towards dishonest politicians and misleading rhetoric (apparently new phenomena in politics) to justify every regulation of political speech they desire. They’ve seamlessly transitioned from citing the need to address misinformation from foreign actors to claiming regulation is necessary to prevent Americans’ political speech they deem to be false.
Manipulated Media (“Deepfakes”)
For years, politicians have been warning that manipulated media would trick us into thinking they did or said something that they, in fact, did not do or say. But we’ve yet to see even small-scale deployment of deepfake technology in an effort to sway voters’ opinions of candidates. Naturally, this hasn’t stopped efforts to ban “deceptively edited” content that features candidates. California is one of a handful of states with such a ban on the books. Deepfake bans were introduced in other states in 2020, but none passed. They are likely to be reintroduced this year, particularly in Colorado, where the Secretary of State made banning deepfakes a central component of her broad “election misinformation” agenda. The primary concern is that such laws will end up censoring legitimate forms of expression.
The latest versions of H.R. 1 and S. 1 also include a “prohibition on distribution of… deceptive audio or visual media of the candidate with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate.” Any outright ban on speech should be viewed with skepticism, and the constitutionality of these provisions is certainly questionable. The bill includes an exception for “media that constitutes satire or parody,” but trusting government to make that distinction makes as much sense as trusting government to ban only false political speech.
The Senate confirmed three new commissioners to the Federal Election Commission in December, restoring the campaign finance enforcement agency to its full slate of six commissioners for the first time since 2017. A fully functioning FEC, with the ability to provide regulatory guidance to speakers and defend its enforcement decisions in court, is a positive development for First Amendment rights.
H.R. 1 and S. 1, however, would transform the Commission from a bipartisan, six-member agency to a partisan, five-member agency under the control of the president. The FEC’s current structure was purposefully designed to prevent partisan abuse of campaign finance laws. As nine former FEC Commissioners warned in a letter to Congress opposing the effort to restructure the Commission, “[b]y definition, campaign finance law inserts the government into partisan electoral disputes. In our experience, the agency’s bipartisan structure both assures that the laws are enforced with bipartisan support and equally important, that they are not perceived as a partisan tool of the majority party – an electoral weapon, if you will.” Despite these warnings, Democrats have messaged this provision in H.R. 1 and S. 1 as critically important, though many Republicans have called foul, comparing the effort akin to turning “the judge into a prosecutor and giving the party of the president the opportunity to harass opponents.” As the former Commissioners concluded, transforming the FEC into a partisan agency “would lead to more partisanship in enforcement and in regulatory matters, shattering public confidence in the decisions of the FEC. The Commission depends on bipartisan support and universal regard for the fairness of its actions. [H.R. 1 and S. 1] frustrate these goals with likely ruinous effect on our political system.”
In lieu of Congressional action to restructure the agency, the Biden administration is already being pressured to stack the FEC with commissioners in favor of more speech-restricting regulatory action. A February memo to the White House argued that “[t]he Biden Administration and Senate Democrats need not wait” on Congress to pass S. 1 before attempting to establish an ideologically aligned majority on the Commission. In other words, the party in power is already scheming to find loopholes in the law’s protections against partisan control of the FEC. Given the agency’s power to investigate, subpoena, fine, and otherwise punish political campaigns and independent speakers, such machinations pose a serious threat to the future of free political speech. They also offer insight into the motivations behind efforts to restructure the commission. H.R. 1 and S. 1 would all but guarantee the degradation of the FEC into a partisan law enforcement agency ripe for abuse.
Another hot-button issue in H.R. 1 and S. 1 – with potentially significant implications across the country – is a renewed effort by Democrats in Congress to push proposals to offer government funding for campaigns. This divisive policy forces taxpayers to subsidize the political campaigns of politicians with whom they may disagree. With tax-financed campaigns, even politicians who express views the vast majority of Americans find objectionable are likely to receive infusions of government cash to help promote those views. In New York City, which has a tax-financing system almost identical to the program proposed in H.R. 1 and S. 1, a longshot candidate received nearly $100,000 in public funds for his blatantly anti-Semitic campaign, even though he raised just $17,000 from voluntary supporters. How did this happen? The city’s 6:1 “matching funds” program allowed him to convert his small base of support into government subsidies for his bigoted campaign. What’s in H.R. 1 and S. 1? A 6:1 “matching funds” program. Under the proposed plan, participating candidates would receive a 600% matching contribution from the government for every donation up to $200. So, a $200 donation earns the candidate an extra $1,200, courtesy of the federal government.
Besides the obvious First Amendment concerns with forcing taxpayers to fund campaign speech with which they disagree, tax-financing also doesn’t achieve it’s intended goals. Instead of preventing corruption, it creates new avenues for corruption. Instead of helping challengers and political newcomers launch more competitive campaigns, tax-financing has enabled incumbents and the politically well-connected to increase their competitive advantages. Furthermore, a generous matching funds program may actually increase political polarization by incentivizing politicians to appeal to a small base of ideologically extreme, but passionate supporters.
The tax-financing program included in H.R. 1 and S. 1 is also broadly unpopular with voters (and a bipartisan contingent in Congress), as evidenced by multiple polls. Democratic Representative Bennie Thompson cited his constituents’ opposition to public financing for campaigns, among other issues, when explaining why he voted against H.R. 1, even though he initially co-sponsored the legislation along with every other Democrat in the House.
Giving taxpayers’ money to politicians’ campaigns harms First Amendment rights, fails to solve problems while creating new ones, and doesn’t have the support of the American people. Despite this reality, we can expect the powerful politicians most likely to benefit from such a program to continually push this failed policy idea. Indeed, recent legislation in New Mexico and an effort in Austin to put a similar program before the voters are indicative of the influence potential Congressional action is having on this speech-chilling policy.
Legislation aimed directly at the right to protest has become increasingly common in recent years, and new bills have already been introduced in state legislatures this year. Lawmakers’ motivation to enact harsh criminal penalties for vaguely defined activities such as “unlawful assembly” came largely in response to mass protests against police brutality last summer. In a cynical attempt to gain bipartisan support, Republicans are now “rebranding” their anti-protest legislation as a necessary response to the violence at the U.S. Capitol in early January.
Rioting, property destruction, and violence against police officers are already illegal acts with stiff penalties. New laws aimed specifically at illegal behavior that can be tied to a protest are not only unnecessary but also risk criminalizing peaceful assembly and organizing. Under some recent proposals, individuals and organizations involved in the planning or funding of a protest could be liable for any illegal activity that occurs in the vicinity of the protest. If activists and peaceful demonstrators fear being charged for others’ crimes at a protest, many will choose not to participate. Legislation that increases penalties for already-illegal activity when it occurs in the context of a protest seem intentionally designed to exacerbate the chilling effect on political speech.
Anti-protest legislation will inevitably result in more monitoring of activists by police. But even without new laws, federal and local law enforcement engaged in widespread surveillance of citizens associated with racial justice advocacy throughout 2020. They monitored social media and private messaging services, collected information on organizers, and even pulled people out of work for questioning simply because they created a Facebook event for a peaceful rally.
Like anti-protest bills, increased surveillance of activists may gain bipartisan support as a result of the Capitol riot. Lawmakers at the federal level are already discussing increasing the government’s power to police domestic terrorism. Democrats jumping on board with this effort would do well to remember the concerns raised just last year when Republicans wanted to label Antifa a terrorist organization. Political violence is a serious problem in this country, but any legislative or law enforcement efforts to prevent it must be carefully implemented to avoid broadly targeting ideology.
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2021 has the potential to be a landmark year for free speech and the right to associate privately, for better or worse. And 2020 has shown us that citizens joining together to defend their rights against government overreach can stop almost any threat. The Institute for Free Speech will continue to ensure that groups across the country and the ideological spectrum have the resources they need to defend themselves, their supporters, and their fellow citizens in 2021 and beyond.