Daily Media Links 10/25: GOP, industry skeptical of new rules for online political ads, Publicly funded campaigns haven’t lived up to expectations anywhere. Why would they in D.C.?, and more…

October 25, 2017   •  By Alex Baiocco   •  
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New from the Institute for Free Speech

Welcome to the Institute for Free Speech

From Bradley A. Smith and David Keating

We began in 2005 as a small nonprofit called the Center for Competitive Politics. Years of growth have transformed us into a national leader on free speech issues, but now it’s time for a change. We are pleased to introduce you to the Institute for Free Speech along with our new logo, revised website, and new web address. We hope you will continue to support us as we promote and defend the political rights to free speech, press, assembly, and petition guaranteed by the First Amendment.

While our name is new, our mission hasn’t changed. We go to court to help clients protect their rights and set new precedents. We work with government officials to craft laws that expand free political speech rights consistent with the Constitution. We produce research on which we build a strong case for political speech rights. We communicate with and educate the public, legislators, organizations, and the media to enable every American to understand the importance of the First Amendment’s political speech freedoms. Our many successes in these areas have served to expand free speech protections for individuals and organizations around the country. All of these efforts will continue…

The Center for Competitive Politics was just the beginning. We are excited to begin a new era – the era of the Institute for Free Speech.  

Center for Competitive Politics Renamed Institute for Free Speech

Though the group’s name is changing, its mission will remain the same. Since its founding in 2005, the Institute has fought for First Amendment political speech rights in every significant court case where they were at stake. Its efforts have contributed to a dramatic restoration of these rights – no other organization has done more to strengthen them.

“Back in 2005, it was important to emphasize that limiting speech frustrates our ability to have free and competitive elections,” said Institute for Free Speech Chair and Founder Bradley A. Smith. “But our very success in establishing the right to spend and speak about elections, especially in SpeechNow.org v. FEC, which established ‘super PACs,’ has led those who oppose robust discussion of candidates and issues to try to squelch speech in myriad new ways.”

“Free speech about candidates and issues remains subject to direct assault, but it is also being attacked indirectly with arcane rules at every level, using securities regulation, broadcast regulation, the IRS, government contracting power, harassment of individuals and organizations who speak out, and more,” Smith continued…

“Most Americans support free speech,” said President David Keating. “We want people to know who we are and what we’re about from the first moment they meet us. Our new name will quickly tell policymakers, journalists, judges, and potential supporters what we do. It will help us become even more effective.”

Is Money Speech?

By Bradley A. Smith

Of course, money isn’t speech – it’s money…

But imagine if the government were to announce that, because “money isn’t religion,” it would ban all spending of money to support religion, and limit contributions to churches and religious organizations to some relatively small amount? “Sure,” the politicians would say, “you’re free to practice whatever religion you want. You just can’t spend money to build churches, hire pastors or other workers, purchase hymnals and religious vessels and symbols, or engage in missionary work.” To say that this would raise serious issues under the First Amendment right to freedom of religion is a gross understatement.

The same is true of another First Amendment right, freedom of the press. Could the government limit a news network to spending $25,000 a year? Could it limit the number of issues a newspaper or magazine is allowed to publish? That would assuredly bring howls of indignation from the press…

You can make up as many examples as you want. Money isn’t a lawyer, but how valuable would the right to an attorney be if the law prohibited you from spending money to hire one? Suppose the government said you are free to travel, but not to spend money on transit, including ownership and maintenance of an automobile?

It is clear, then, that when government limits expenditures of money in order to limit an activity, it is limiting the targeted activity.

Why Does the Institute for Free Speech Have a Lantern in its Logo?

By Joe Albanese

Imagery that features flames can symbolize many different things: enlightenment, liberty, or even passion. These are all concepts we are eager to invoke. But the Institute’s lantern comes with a historical background too.

The story begins with the Liberty Tree, which grew in Boston from 1646 until 1775, when the British Army chopped it down. That famous elm tree was the site of numerous meetings and protests, especially against the hated Stamp Act in 1765, which imposed taxes on newspapers, pamphlets, other publications, documents, and even playing cards. The tree came to be seen as a symbol of freedom and revolt and spread to the other American colonies, which dedicated their own liberty trees in the years leading up to the American Revolution.

The organized protests against the Stamp Act led to its repeal, a testament to the power of political speech and an engaged populace. Bostonians celebrated the repeal by hanging lanterns on the Liberty Tree…

The Institute for Free Speech exists to boldly defend the fundamental rights of speech, assembly, press, and petition, even as some discount or forget their importance. The lantern in our logo represents the freedom to express ideas, the knowledge that is revealed through open debate, the ability to organize into groups, and the passion for liberty that drives us.

In the News

Salt Lake Tribune: Swallow asks judge to toss FEC lawsuit, says it violates his right to free speech

By Jennifer Dobner

Swallow’s attorneys argue that the FEC has never accused the former GOP officeholder of doing anything more than giving Johnson advice – an act they say he’s now being illegally prosecuted for under a quietly adopted “secondary liability” rule that holds one person legally responsible for helping another.

It’s a broad interpretation of election law, Swallow’s lawyers from the Washington, D.C.-based Center for Competitive Politics (CCP) contend, that has a chilling effect on free speech.

“This means speakers like Mr. Swallow must be silent or edit their speech to avoid tripping over an amorphous line,” the motion states. “The First Amendment does not permit such unbounded regulations.”…

Even if the FEC could make a sound argument for its rule – one reportedly based on a judicial decision – the agency failed to inform campaign practitioners of its intentions or reasoning when it adopted the rule creating a new class of liability, the motion adds.

“In other words, the FEC pulled a switcheroo,” Swallow’s attorneys wrote, arguing that the court should dismiss the case and toss out the FEC’s “misguided regulation.”  

San Antonio Express-News: Hearing reveals rocky path to regulating online political ads

By Bill Lambrecht

With the specter of Russians manipulating American public opinion hanging over Capitol Hill, U.S. Rep. Will Hurd convened a panel of experts Tuesday whose testimony pointed to a rocky path for legislation aimed at preventing foreign interference in future elections…

Newly introduced legislation in both the Senate and House would make significant changes by requiring Facebook, Twitter and other large tech companies to gather information on the sponsor of ads and make it publicly available along with the ads themselves…

“I think some of the things they’re talking about already are being done in existing law,” said Hurd, who suggested that a better approach might be tightening the Foreign Agent Registration Act and existing federal rules…

Allen Dickerson, of the Center for Competitive Politics – an advocacy group that says its mission is protecting the First Amendment – told committee members that legislation “will drive out the poorest and least-sophisticated online speakers.”

“The blossoming of online speech is delicate and great caution must be taken in burdening the rights of American speakers,” he said. 

Deseret News: New John Swallow defense team asks judge to toss FEC complaint against him

By Dennis Romboy

Former Utah Attorney General John Swallow has mobilized a free-speech rights group and a former Federal Election Commission chairman to defend him against alleged election law violations.

Lawyers for the Center for Competitive Politics and ex-FEC Chairman Scott Thomas, all based in Washington, D.C., have asked a federal judge to dismiss the complaint against Swallow.

“The FEC’s pursuit of Mr. Swallow is a clear overreach of the agency’s constitutional authority, made especially dangerous by the fact that it concerns his speech rather than his actions,” Allen Dickerson, the center’s legal director, said in a statement.

Swallow broke no law, and the regulation cited in the complaint is illegal and violates the First Amendment, according to the filing in U.S. District Court. 

Internet Speech Regulation

The Hill: GOP, industry skeptical of new rules for online political ads

By Ali Breland

Randall Rothenberg, president and CEO of the Interactive Advertising Bureau, told lawmakers on the House Oversight and Government Reform Subcommittee on Information Technology that new rules would unduly burden digital publishers.

“One of the problems I have with the Honest Ads Act is its placing the burden on smaller publishers that don’t have the financial wherewithal to shoulder that burden,” he said, referring to legislation offered in the Senate that would impose new regulations on web companies…

Rep. Paul Mitchell (R-Mich.) blasted the idea of holding companies like Facebook and Google to the same rules as other media over political ads.

“On the internet post, the provider, the intermediary is not responsible for it. They didn’t write it. They didn’t hire them, they didn’t determine who they are, yet you want to hold them to the same standard as your newspaper, which is an entirely different format,” he said.

Mitchell said new rules would infringe on free speech.

“The idea that we’re going to allow regulators, a group of bureaucrats, to determine what we will be able to see in terms of social media or other formats offends me, and I will certainly oppose that in whatever way I can,” he said.

Twitter Blog: New Transparency For Ads on Twitter

By Bruce Falck

In the coming weeks, we will launch an industry-leading transparency center that will offer everyone visibility into who is advertising on Twitter, details behind those ads, and tools to share your feedback with us…

Electioneering ads are those that refer to a clearly identified candidate (or party associated with that candidate) for any elected office. To make it clear when you are seeing or engaging with an electioneering ad, we will now require that electioneering advertisers identify their campaigns as such. We will also change the look and feel of these ads and include a visual political ad indicator.

In the Transparency Center, there will be a special section for electioneering ads…

We are committed to stricter policies and transparency around issue-based ads. There is currently no clear industry definition for issue-based ads but we will work with our peer companies, other industry leaders, policy makers, and ad partners to clearly define them quickly and integrate them into the new approach mentioned above. 

First Amendment

Los Angeles Times: Protesters who burned the U.S. flag at 2016 Republican convention were wrongly charged, judge says

By Matt Pearce

Judge Charles L. Patton granted the protesters’ motion to dismiss the case on free-speech grounds. Patton cited a 1989 U.S. Supreme Court decision that flag-burning was protected by the 1st Amendment.

“The government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved,” Patton wrote in his ruling.

In a telephone interview, Patton said: “The guy was doing what he did, and the Supreme Court said he could do it.” When Patton reviewed video of the incident, “It looked like they were doing a peaceful protest.” …

“We are thrilled that the court saw these arrests for what they were: quashing dissent,” Noche Diaz, one of the defendants whose charges were dropped, said in a statement. “We are proud of what we did at the RNC and that we stood up to the suppression of speech.”

More than 40 attorneys volunteered to defend protesters pro bono, including members of the National Lawyers Guild and the Cleveland branch of the NAACP.

“This should be read as a clear message to the city – and particularly to the police – that they must respect the 1st Amendment rights of protesters, whatever their message,” one of the attorneys, Jacqueline Greene, said in a statement.

MassLive: Boston officials violated First Amendment rights at ‘Free Speech’ rally in August, ACLU and media groups say in letter

By Gintautas Dumcius

Officials with the city of Boston violated the First Amendment rights of reporters at the Aug. 19 ‘Free Speech’ rally, the Massachusetts ACLU and media organizations said in a letter to Mayor Marty Walsh and his police chief.

In the Oct. 24 letter, the groups said “journalists were improperly excluded from the buffer zone around the Boston Common’s Parkman Bandstand during the rally on August 19, 2017.”

The groups added that they “seek assurances that this exclusion will not be repeated at the rally that has reportedly been scheduled for November 18.” …

“Journalists could not hear what participants said, record or photograph the proceedings near the Bandstand, or interview participants, including about the reasons for their involvement and views,” the civil liberties and media groups wrote in their letter.

“We therefore request that significant changes be made to comply with the First Amendment, while ensuring public safety, with regard to the ‘Rally for the Republic’ planned for November 18,” they added.

Trump Administration

NBC News: Justice Dept. Adds Support to Student in California Free Speech Case

By Associated Press

The department on Tuesday filed a statement of interest in the case of Kevin Shaw, who sued Pierce College in Los Angeles. Shaw says administrators barred him from distributing Spanish-language copies of the U.S. constitution outside of a 616-square-foot area on campus.

Students must obtain prior authorization from campus officials by submitting a permit application in order to use the area, the Justice Department said in a statement. The college also maintains unpublished rules governing free speech, which the Justice Department says students are not made aware of until they obtain a permit application.

The Justice Department argues that Pierce College’s speech policies are unconstitutional and do not constitute valid time, place and manner restrictions for free speech…

“University officials and faculty must defend free expression boldly and unequivocally,” Sessions said in a statement. “Last month, I promised a recommitment to free speech on campus and to ensuring First Amendment rights. The Justice Department continues to do its part in defending free speech, protecting students’ free expression, and enforcing federal law.”

Tax-Financed Campaigns

Washington Post: Publicly funded campaigns haven’t lived up to expectations anywhere. Why would they in D.C.?

By Eric Peterson

Seattle, the most recent city to implement public financing by way of “democracy vouchers,” saw disappointing results from its program…

Instead of helping lesser-known candidates, as supporters said it would, the vouchers simply propped up incumbents and those who already had substantial fundraising apparatuses.

Of the $315,000 awarded for the primary election, the majority went to three candidates; one was an incumbent and the other two were politically connected activists…

Even worse, some candidates allegedly engaged in fraud to qualify for the vouchers… 

Maine, which has had publicly financed campaigns for years, had numerous candidates run for office for the sole purpose of gaining access to public funds…

Between 2001 and 2012, a dozen supposedly “clean elections” candidates in Maine who used public financing were investigated for misusing taxpayer funding.

Washington is no stranger to dirty politics and there is much that can be done to root out corruption. But publicly funding campaigns will not solve the problem. Instead, it’s more likely to exacerbate it. 

The States

St. Louis Public Radio: New limits to campaign financing confuse Missouri’s political candidates

By Jo Mannies

Just over a year away from what could be a crucial 2018 election, Missouri candidates are grappling with the new restrictions to campaign donations mandated by the voter-approved measure known as Amendment 2…

But flaws in the new system are prompting the General Assembly and political activists to seek more changes.   

The Missouri Ethics Commission, charged with enforcing the new law, has had its hands full. The six-person panel has issued at least 15 different opinions addressing various provisions of Amendment 2. It’s also been caught in the middle of several lawsuits…

[A] federal appeals court is reviewing some of the amendment’s PAC restrictions. And the Missouri Chamber of Commerce recently filed suit challenging the commission’s ban on corporate donations to the chamber’s PAC.

Alex Baiocco

https://www.ifs.org/author/abaiocco/

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