New from the Institute for Free Speech
The Institute for Free Speech Summer Associate Legal Fellowship is a unique opportunity for law students to explore a career in public interest and First Amendment law. The program is open to students who will finish their first or second year of law school by the summer of 2021.
Fellows are expected to work full time for 10 weeks in our Washington, D.C. area headquarters, but other arrangements may be available to especially outstanding candidates. In light of the ongoing pandemic, the possibility remains that fellows will work remotely for some or all of the summer fellowship.
Fellows are eligible to earn $10,000 in salary for their 10 weeks of employment.
During the fellowship, students will work with Institute for Free Speech attorneys for a portion of their time. Each fellow will also be expected to complete a project. Applicants are encouraged to be creative in suggesting a project as part of their application. While many projects may produce papers suitable for publication, we will consider any project related to protecting or advancing First Amendment rights.
Wall Street Journal: Donor Privacy at the Supreme Court
By The Editorial Board
Xavier Becerra has been nominated to run the Department of Health and Human Services, but his current California office is going to the Supreme Court. The Justices agreed on Friday to hear a pair of lawsuits opposing California’s blanket policy that charities must turn over the names and addresses of their major donors.
That information is given to the IRS on a Schedule B form, but it’s sensitive and legally protected from federal disclosure. “No California law or regulation expressly requires charities to file their Schedule Bs with the California Attorney General in renewing their annual registrations,” says the petitioner in Americans for Prosperity Foundation v. Becerra. The state began demanding the information in 2010.
California pledged to keep it confidential. But in the course of litigating this case, the foundation says that it “discovered 1,778 Schedule Bs that the Attorney General’s Registry had publicly posted online.” One disclosed was “a complete Schedule B for Planned Parenthood Affiliates of California,” including “the names and addresses of hundreds of donors.” Whoops…
In a politically polarized age, it’s not hard to see why donors might want to remain behind the curtain. For Americans engaged in controversial debates, a leak of any group’s Schedule B-to say nothing of 1,778 of them-might send a constitutional chill through sunny California. Mr. Becerra’s record against nonprofits is also a good issue to explore at his confirmation hearing.
[Ed. note: The Institute for Free Speech filed an amicus brief in AFPF v. Becerra in support of the petitioners. We also filed a related lawsuit challenging then-Attorney General Kamala Harris’s demand for nonprofit Schedule B information in IFS v. Becerra. Read more about that case here.]
By John Bursch
[T]he U.S. Supreme Court will be hearing arguments in Alliance Defending Freedom’s case, Uzuegbunam v. Preczewski, on Jan. 12…
College officials clearly violated Chike’s rights. But the district court allowed them to get away with it, dismissing the case because the policy was revoked and because Chike had graduated, after spending his final semesters of college banned from sharing his faith as he desired. The U.S. Court of Appeals for the 11th Circuit affirmed.
This is terribly unjust. If government officials can violate our rights and get off the hook without consequence, then our rights aren’t worth very much. That’s not how our American justice system is supposed to work.
Under the 11th Circuit’s ruling, Georgia Gwinnett College is essentially free to reenact its unconstitutional speech restrictions until another student finds the courage to file a lawsuit like Chike’s. In fact, ADF has had to sue some universities multiple times because they have done exactly that.
This is why courts must order the government to pay nominal damages to plaintiffs like Chike. Nominal damages redress a constitutional injury when a plaintiff is unable or does not want to put a dollar figure on a lost right, and we need nominal-damages awards to ensure that our rights are scrupulously observed. If citizens cannot obtain meaningful redress when the government acts unlawfully, our rights will be violated more frequently…
In our increasing polarized times, it’s worth noting that this is a lawsuit where major legal organizations of diverse ideological stripes all agree. Over two dozen groups have filed amicus briefs supporting Chike, including the ACLU, Christian Legal Society, the American Humanist Association, and the Council on American-Islamic Relations.
[Ed. note: The Institute for Free Speech filed an amicus brief in support of the petitioners in Uzuegbunam v. Preczewski.]
Courthouse News: High Court Turns Away Challenge to Abortion Clinic Buffer Zones
By Kayla Goggin
The Supreme Court refused Monday to take up anti-abortion activists’ challenge to a Pittsburgh ordinance creating protest-free buffer zones around abortion clinics, but a conservative justice said the court should hear the issue when a more developed case comes before it…
In their petition to the Supreme Court, the protesters alleged that the city enacted the 2005 buffer-zone ordinance to “punish pro-life sidewalk counselors and supporters” and unfairly ban them from speaking in a location “where counselors’ expression matters most.” …
The petition claims that since talk about other topics, including the weather or sports, is allowed in the buffer zone, the ordinance unfairly singles out “sidewalk counselors” and disadvantages their speech…
An attorney for the protesters, John Bursch of the Alliance Defending Freedom, said Monday that “the city shouldn’t be allowed to carve out space on public sidewalks and declare that certain topics and forms of speech are off limits there.”
“The government can’t silence speakers just because it doesn’t like what they have to say,” Bursch said. “As the Supreme Court declared as recently as 2018 in another ADF case, ‘the people lose when the government is the one deciding which ideas should prevail.'”
Featuring David M. Primo and Jeffrey D. Milyo; moderated by John Samples
In recent decades, and particularly since the U.S. Supreme Court’s controversial Citizens United v. Federal Election Commission decision, lawmakers and other elites have told Americans that stricter campaign finance laws are needed to improve faith in the elections process, increase trust in the government, and counter cynicism toward politics. Not surprisingly, the next administration and the new Congress will kick off with proposed legislation to regulate campaign finance.
David M. Primo and Jeffrey D. Milyo argue that politicians and the public alike should reconsider this conventional wisdom in light of surprising and comprehensive empirical evidence to the contrary. Primo and Milyo probe original survey data to determine Americans’ sentiments on the role of money in politics, what drives these sentiments, and why they matter.
What have the authors found? While many individuals support the idea of reform, they are also skeptical that reform would successfully limit corruption, which Americans believe stains almost every fiber of the political system. Moreover, support for campaign finance restrictions is deeply divided along party lines, reflecting the polarization of our times. Ultimately, Primo and Milyo contend that American attitudes toward money in politics reflect larger fears about the health of American democracy, fears that will not be allayed by campaign finance reform.
Please join us January 12 from noon to 1 p.m. for a refreshingly contrarian discussion of American politics and campaign finance.
[Ed. note: David M. Primo and Jeffrey D. Milyo are IFS academic advisors. Barnaby Zall reviewed their book in an IFS guest blog, and former IFS attorney Zac Morgan reviewed their book in National Review.]
Online Speech Platforms
Wall Street Journal: Save the Constitution From Big Tech
By Vivek Ramaswamy and Jed Rubenfeld
Facebook and Twitter banned President Trump and numerous supporters after last week’s disgraceful Capitol riot, and Google, Apple and Amazon blocked Twitter alternative Parler-all based on claims of “incitement to violence” and “hate speech.” Silicon Valley titans cite their ever-changing “terms of service,” but their selective enforcement suggests political motives.
Conventional wisdom holds that technology companies are free to regulate content because they are private, and the First Amendment protects only against government censorship. That view is wrong: Google, Facebook and Twitter should be treated as state actors under existing legal doctrines. Using a combination of statutory inducements and regulatory threats, Congress has co-opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution…
Liberals should worry too. If big tech can shut down the president, what stops them from doing the same to Joe Biden if he backs antitrust suits against social-media companies?
New York Times: Can Twitter Legally Bar Trump? The First Amendment Says Yes
By Adam Liptak
The American Civil Liberties Union, too, said the free speech interests involved in suspending Mr. Trump’s Twitter account were complicated.
“We understand the desire to permanently suspend him now, but it should concern everyone when companies like Facebook and Twitter wield the unchecked power to remove people from platforms that have become indispensable for the speech of billions,” said Kate Ruane, an A.C.L.U. lawyer. “President Trump can turn to his press team or Fox News to communicate with the public, but others – like the many Black, brown and L.G.B.T.Q. activists who have been censored by social media companies – will not have that luxury.”
Wall Street Journal: Facebook Says It Is Removing All Content Mentioning ‘Stop the Steal’
By Sarah E. Needleman
Facebook said it is removing all content mentioning “stop the steal,” a phrase popular among supporters of President Trump’s unproven claims of election fraud, as part of a raft of measures to stem misinformation and incitements to violence on its platform ahead of President-elect Joe Biden’s inauguration.
The social-media giant said Monday that it would uphold its decision last week to suspend Mr. Trump from posting for at least two weeks, with Chief Executive Mark Zuckerberg saying at the time that the risks of the president using Facebook during this period were too great.
The company also said Monday that it would continue to pause all U.S. ads about politics or elections, including those from Mr. Trump.
“With continued attempts to organize events against the outcome of the U.S. presidential election that can lead to violence, and use of the [‘stop the steal’] term by those involved in Wednesday’s violence in DC, we’re taking this additional step in the lead up to the inauguration,” Facebook said in a blog post.
“It may take some time to scale up our enforcement of this new step but we have already removed a significant number of posts,” the company said.
New York Times: Pro-Trump Mob Livestreamed Its Rampage, and Made Money Doing It
By Kellen Browning and Taylor Lorenz
When the white nationalist Tim Gionet stormed the U.S. Capitol with a mob of Trump loyalists on Wednesday, entering congressional offices and putting his feet up on lawmakers’ furniture, he also chatted live with more than 16,000 of his fans.
Using a livestreaming site called Dlive, Mr. Gionet – known by the online alias “Baked Alaska” – broadcast his actions inside the Capitol. Through Dlive, his fans then sent him messages telling him where to go to avoid capture by the police. They also tipped him with “lemons,” a Dlive currency that can be converted into real money, through which Mr. Gionet made more than $2,000 on Wednesday, according to online estimates…
Dlive’s increasing popularity shows how an online exodus of far-right figures on Facebook, Twitter and YouTube since the November election has now moved beyond alternative social-networking, news and video sites like Rumble, Gab and Parler. Livestreaming is also benefiting – especially as a way to communicate live with followers and to earn money by spreading hate.
Candidates and Campaigns
By Juliegrace Brufke and Alex Gangitano
A wave of corporations on Monday said they would cut off donations to any politicians who opposed the Electoral College results, putting new pressure on Republicans to break with President Trump and end their attacks on the election.
Blue Cross Blue Shield Association said it would suspend contributions to lawmakers who “voted to undermine our democracy.” Separately, in an internal email obtained by The Hill, it said it will not give its annual contributions to the National Republican Congressional Committee, which is the House GOP’s campaign arm, or the Republican National Committee, which is led by President Trump’s hand-picked chair, Ronna McDaniel…
Marriott will be suspending donations to the GOP senators who objected to certifying President-elect Joe Biden’s victory and said it will judge other donations based on which lawmakers oversee leadership political action committees (PACs)…
Oil giant BP also announced a halt in all political donations…
Multiple companies, including Goldman Sachs, JPMorgan Chase, Citigroup and Mastercard, also have said they will temporarily stop making all political contributions to lawmakers of both parties…
Doug Heye, a longtime GOP strategist and former RNC communications director, noted that corporations generally seek to separate themselves from controversy.
He said no one should be surprised by corporations seeking distance from those seen as fomenting Wednesday’s attack.
He also said individual members are likely to feel more pain than organizations such as the NRCC and CLF.
A former Republican campaign official said rank-and-file members could also see more pain than leaders.
“I think it’s a concern for individual members, your rank-and-file members who rely more heavily on PAC contributions,” the former Republican campaign official said. “The leaders get a good amount of money from PACs but I think their contribution base is a little bit more varied.”
By Cristiano Lima
Facebook, Google and Microsoft all said Monday that they’re freezing political donations in the wake of last week’s deadly riot in the Capitol by President Donald Trump’s supporters.
Philadelphia Inquirer: New Pa. GOP leader pushes transparency reforms despite party’s past reluctance, obstruction
By Angela Couloumbis of Spotlight PA and Brad Bumsted and Sam Janesch of the Caucus
In his first speech as top leader of the Pennsylvania Senate last week, Republican Sen. Jake Corman positioned himself as a reformer seeking to restore faith in government by greatly increasing transparency in the legislature and by elected lawmakers.
Transparency should be at the center of everything senators do, he said, whether filing office expenses, raising campaign cash, or dealing with lobbyists and dark money groups.
Corman said he would support lobbying reform to “clearly define relationships between legislators, lobbyists, and political consultants.” He also stressed the need for what he called “real-time reporting of campaign contribution expenses,” and suggested stricter disclosures for nonprofit groups that engage in political activity, which currently operate largely in the shadows…
But an analysis of his track record as a ranking member of the Senate Republican caucus over the past five years reveals more talk than action on government transparency. The majority party has faced criticisms regarding how the legislature spends taxpayer dollars on its own operations, campaign finance disclosures, and questionable ties to dark money groups.
Reform bills, meanwhile, have languished, even though Republicans exclusively control the agenda for which legislation gets heard – and have for Corman’s entire two-decade tenure in the Senate…
Until last week, Corman had also not expressed interest in additional public disclosure requirements for nonprofit groups that organize under federal tax law as 501(c)(4) organizations.
Grand Forks Herald: North Dakota GOP lawmakers take aim at social media companies over censorship
By Jeremy Turley
A group of Republican lawmakers has introduced a bill that would put social media companies in legal jeopardy for censoring or restricting political posts in North Dakota. However, a First Amendment expert strongly questions whether the proposal is enforceable.
House Bill 1144 would make large social media sites liable in civil lawsuits for damages to any North Dakota resident “whose speech is restricted, censored, or suppressed,” so long as it is not “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”…
[Lead bill sponsor Rep. Tom] Kading argues that firms like Facebook and Twitter violate the terms of agreement signed by users when they ban or restrict content related to politics. In that way, the bill deals more in contract law than First Amendment law…
The Fargo lawmaker said his legislation may not be the way to go about regulating the companies, but he’s at least starting a productive discussion about how to hold them accountable.