Daily Media Links 12/4

December 4, 2018   •  By Alex Baiocco   •  
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Supreme Court

Los Angeles Times: Supreme Court suggests forcing lawyers to pay bar association dues violates their free speech

By David G. Savage

The Supreme Court cast doubt Monday on laws in at least 30 states that require lawyers to pay dues to bar associations…

Justice Samuel A. Alito in a recent opinion called it a “bedrock principle” that “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

In June, Alito spoke for a 5-4 majority that struck down state laws in California and elsewhere that required teachers and other public employees to pay fees to support a union. In Janus vs. AFSCME, the court said that requirement violated the free-speech rights of employees who did not support the union.

That case proved helpful to lawyers challenging mandatory bar association fees based on the same principle. In a brief order on Monday, the court overturned a ruling last year by the U.S. 8th Circuit Court of Appeals that had upheld mandatory bar dues in North Dakota and sent the case back “for further consideration in light of Janus.”…

Lawyers for the Goldwater Institute in Phoenix who appealed the issue to the high court said their constitutional challenge was aimed at forced subsidies of private bar associations, not forced payments to cover the cost of state regulation.

But they are also challenging mandatory bar dues in states like California that make it hard for lawyers to “opt out” of subsidizing activities involving politics and lobbying.

The case began when Arnold Fleck, a North Dakota lawyer, sued his state bar association after he learned it had contributed $50,000 to oppose a state ballot measure. Fleck had contributed $1,000 to support the same measure. He objected to being compelled by state law to pay $380 a year to support the bar association.

In Defense of Liberty Blog (Goldwater Institute): U.S. Supreme Court: Yes, The First Amendment Protects Lawyers, Too

By Timothy Sandefur

[T]he U.S. Supreme Court issued one of its first decisions applying the First Amendment in light of 2018’s Janus v. AFSCME decision, reversing a lower court ruling that allowed states to force lawyers to subsidize state bar associations against their will. The Goldwater Institute sued North Dakota on behalf of attorney Arnold Fleck, arguing that the Constitution prohibits the state from forcing him to pay to support political activities he disagreed with. The Eighth Circuit disagreed, holding that forcing lawyers to join the state bar association was a legitimate way to regulate the practice of law-and that Fleck had really “opted in” to being forced to pay, since, after all, he wrote the check and sent it to the state.

That holding contradicts the protections afforded in the Janus case, which held that the government must never presume that someone’s willing to subsidize speech they disagree with. For one thing, there are plenty of states that regulate the practice of law without forcing lawyers to join a bar association. (These states separate the “bar association” from the bar itself-the “bar association” is a trade association and participates in political debates-as opposed to the state bar, which is a regulatory body.)

The Court agreed. In today’s order-which was issued without an accompanying opinion-the Supreme Court reversed the Eighth Circuit’s decision and ordered the judges there to reconsider their ruling in light of Janus…

Today’s victory is a critical step in applying Janus protections. It’s wrong to force people to subsidize political statements they disagree with-lawyers no less than others. We look forward to presenting our case again to the Eighth Circuit-and, if necessary, to the U.S. Supreme Court again.

The Courts

Courthouse News Service: UC Berkeley Settles Young Conservatives’ Free-Speech Suit

By Nicholas Iovino

Following a rash of violent protests in Berkeley during the first few months of Donald Trump’s presidency, the university cited security concerns in canceling a planned speech by conservative firebrand Ann Coulter in April 2017.

In response, Young America’s Foundation, a Tennessee nonprofit, and the Berkeley College Republicans – who reportedly paid a combined $20,000 to cover Coulter’s speaking fee – quickly filed a federal lawsuit accusing the college of viewpoint discrimination.

After submitting a preliminary settlement in court Monday morning, both sides sent out statements framing the deal as a legal victory.

UC Berkeley said it merely made “non-substantive” changes to its events policy and agreed to pay the conservative youth groups $70,000, “a fraction of the attorney’s fees that plaintiffs incur in a lawsuit of this sort.” …

But the plaintiffs say the policy changes are far more substantial than the university is willing to acknowledge.

The Young America’s Foundation, which organizes conservative speaking events at colleges across the country, said the deal will rescind the university’s “discriminatory” security fee policy and abolish its “heckler’s veto,” meaning protesters will no longer be able to shut down speaking events…

In April, U.S. District Judge Maxine Chesney rejected claims that the college engaged in intentional viewpoint discrimination and that its amended events policy was unconstitutionally vague, except for one line that allows stricter rules to be imposed based on an event’s “complexity.”

Roll Call: Campaign Aide to Rep. Robert Brady Found Guilty on 9 Counts

By Katherine Tully-McManus

A federal jury found Rep. Robert Brady’s top political strategist, Kenneth Smukler, guilty on nine counts of breaking campaign finance laws and obstructing a Federal Election Commission investigation.

The jury found Smukler guilty of conspiracy to violate federal law, making and causing unlawful campaign contributions and causing false statements to the FEC in connection with a 2012 congressional primary campaign in a Philadelphia-area congressional district…

Smukler, 57, was found guilty of one count of conspiracy to defraud the United States, two counts of causing unlawful campaign contributions, one count of causing false campaign expenditure reports, two counts of causing false statements, two counts of making contributions in the name of another, and one count of obstruction. He was acquitted on two charges related to making false statements to the FEC.

Free Speech 

Reason: Some Temple University Administrators Want Marc Lamont Hill Fired For ‘Hate Speech’

By Robby Soave

Last week, CNN cut ties with Marc Lamont Hill, a professor at Temple University and leftist pundit for the network, after he made comments about Israel that some consider anti-Semitic. Now some officials at Temple University want to do the same thing.

Hill’s comment came at a November 28 United Nations meeting, where he called for a “free Palestine from the river to the sea”-a phrase sometimes used by groups, such as Hamas, that support the destruction of Israel. Hill later apologized, insisting that he did not favor violence or an end to Israel’s existence, but the CNN honchos were unmoved.

CNN is under no obligation to employ Hill; his bosses can fire him because they don’t like his opinions. The same is not true for Temple, a state-related research university in Philadelphia, where Hill has tenure. Nevertheless, Patrick O’Connor, the chairman of Temple’s board, tells Philly.com that “no one is happy with [Hill’s] comments.” More concerning, O’Connor-described as a prominent lawyer in the article-also said, “Free speech is one thing. Hate speech is entirely different.”

This distinction between “hate speech” and “free speech” is nonsense. No Supreme Court decision has ever recognized hate speech as a separate, unprotected category of speech, and any attempt to regulate hate speech at a public university would assuredly be struck down as unconstitutional…

Temple administrators should stand down immediately. They can criticize Hill all they want, but anti-Israel statements are protected speech, hateful or not.

This incident is a useful reminder that attempts to limit the scope of permissible speech on campus due to nebulous safety concerns-“hate speech,” “perceived threats,” etc.-will always backfire on the left.

Online Speech Platforms 

Real Clear Politics: Renegotiated NAFTA Will Entrench Big Tech Censorship

By Adam Candeub

When he signed the U.S.-Mexico-Canada Agreement, Donald Trump boasted that it was the “most advanced trade deal in the world with ambitious provisions on the digital economy.” But unless it’s revised, the agreement will thwart the president’s explicit promises to address social media censorship. Article 19.17 of the USMCA stealthily removes seven words from Section 230 of the Communications Decency Act’s “Good Samaritan” provision, which would give Big Tech the statutory right to censor whatever content it finds “objectionable.”…

As Sen. Cruz wrote in April, “In order to be protected by Section 230, companies like Facebook should be ‘neutral public forums.’ On the flip side, they should be considered to be a ‘publisher or speaker’ of user content if they pick and choose what gets published or spoken”

The social network’s defenders responded that Cruz had this backwards. Elliot Harmon of the Electronic Frontier Foundation contended that “one of the reasons why Congress first passed Section 230 was to enable online platforms to engage in good-faith community moderation without fear of taking on undue liability for their users’ posts.”

Harmon was referring to Section 230(c)(2), the law’s “Good Samaritan” clause, which provides that platforms cannot be held liable for good faith restrictions on what they consider “to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” …

Removing those seven terms would remove the context for “objectionable” and likely lead courts to interpret it to mean whatever the platforms object to…

To be clear, as interpreted by the courts currently, Section 230 does not prevent online platforms from exerting political bias or censorship. However, the revisions would statutorily entrench this right, preventing other legal actions to stop them.

Political Advertising 

The Conversation: The big lessons of political advertising in 2018

By Erika Franklin Fowler, Michael Franz, and Travis N. Ridout

As co-directors of the Wesleyan Media Project, which has tracked and analyzed campaign advertising since 2010, we spend a lot of time assessing trends in the volume and content of political advertising…

Although Americans frequently complain about campaign advertising, it remains an important way through which candidates for office can communicate their ideas directly to citizens, especially those who would not necessarily seek out the information themselves…

Outside groups paid for 22 percent of ads aired in U.S. House races in 2018, an increase over the 15 percent of group airings in 2016. And those outside groups paid for a little more than one-third of all ads aired in U.S. Senate races, a slight decrease from 2016.

In partnership with the Center for Responsive Politics, we categorize these groups into three classifications: full-disclosure groups, meaning they disclose contributor lists to the Federal Election Commission; nondisclosing dark money groups that are most often 501(c)4 nonprofits; and partial-disclosure groups that identify donors but also accept contributions from dark money sources.

In past cycles, we found that dark money was more prevalent among Republican groups than pro-Democratic ones. This cycle, the pattern flipped.

One in four, or 25 percent, of ads aired by groups on behalf of Democratic House candidates in the election year was from a dark money group. Only about 12 percent of pro-Republican ads aired by groups in House races was from a dark money sponsor.

In Senate races, dark money sponsors for Democrats and Republicans were about equal in share, roughly one in every three outside group ads on either side of the aisle.

Independent Groups

Center for Responsive Politics: Liberal ‘guardian angel’ donors surpass conservatives in spending

By Kaitlin Washburn

This cycle, many well-known, mega donors served as the guardian angels for one or more super PACs. To be considered a guardian angel, an individual must be the number one donor for that super PAC, and their giving must make up 40 percent or more of the contributions to a committee.

The Center for Responsive Politics identified 22 of these donors who gave over $200 million to these super PACs during the midterms…

Earlier this cycle, the Center for Responsive Politics reported that conservative donors gave more as guardian angels compared to liberals.

After the midterms, liberal donors caught up to conservative guardian angels – giving $96 million while conservatives gave $94 million.

These guardian angel donors will sometimes fund single-candidate super PACs. During the midterms, only two candidates who benefited from these committees won their races: Josh Hawley and Steve Watkins.

The States

Techdirt: How Civil Subpoenas Are Used To Unmask Online Speakers, And How A Recent Decision Will Help Deter Bogus Ones

By Cathy Gellis

This decision by a California appeals court, Roe v. Halbig, is one such example, and happily the impact it stands to have is a good one. It isn’t a showy decision declaring some new principle of liberty. Rather, it stands to quietly help ensure that codified protections for speech, and anonymous speech in particular, work as intended.

We’ve written many times before about how important it is that anonymous speech be protected. Indeed, the US Supreme Court has found that the First Amendment includes the right to speak anonymously, because without that right a lot of important speech could not happen. But it’s one thing to say that anonymous speech must be protected; it’s another to make sure that anonymous online speakers can remain anonymous on a practical level. If it is too easy to unmask speakers, then their right to speak anonymously becomes illusory.

To prevent the right to anonymous speech from becoming meaningless, it’s important that discovery instruments, like subpoenas, intended to unmask speakers, not be vulnerable to being abused, especially by plaintiffs who don’t have a legitimate need to unmask their critics. Because not only is a SLAPP suit chilling to speech, but so is a subpoena arising from a SLAPP suit that strips a speaker of the anonymous protection they counted on having when they spoke.

This decision will help prevent the latter.

U.S. News & World Report: Record Level of Women Elected in Maine Amid Liberal Spending

By Marina Villeneuve, Associated Press

Maine voters sent a record number of women to the Legislature on Election Day as liberal spending boosting female candidates helped Democrats sweep into control of the Statehouse.

A total of 72 female lawmakers will soon be sworn in to the Legislature now dominated by Democrats, including 12 in the Senate and a record-breaking 60 women in the House, according to election results collected by The Associated Press.

The record held by women serving in the Statehouse was 64 in 2017.

Maine has long ranked among the top states in the nation for its share of female legislators. The state’s election results follow a national trend of women who sought and won races for Congress and state seats.

Over 2,000 women will serve nationwide in legislatures in 2019, according to the Center for American Women and Politics.

But Maine’s Election Day results represent a successful push by liberals backed by out-of-state donors to elect Democratic women and take control over the Statehouse, which awaits potential fights over sick leave in 2019 and political redistricting in 2021.

The DC Line: Council set to take second vote Tuesday on amended version of campaign finance reform bill

By Kalina Newman

Though [Council Chairman Phil Mendelson] said he had decided to vote for the bill despite some concerns, the chairman cautioned council members that passing Allen’s legislation is unlikely to end complaints about campaign contributors having undue influence over the political process. Representative government is all about seeking influence on policy decisions, he said, whether that comes via paid lobbying, campaign contributions, civic letter-writing campaigns, informal contact or myriad other mechanisms, he said…

Mendelson ended his commentary by reflecting on past District scandals, such as when former council member Michael A. Brown was sentenced to three years in federal prison for accepting tens of thousands of dollars in bribes. But Brown’s offenses – and those of other legislators accused of wrongdoing – did not involve campaign fundraising or the contracting process governed by the current bill, Mendelson noted. The bill’s critics have similarly warned that it does not address the problems that have arisen in DC, describing the claims of some proponents that it does as potentially sowing distrust of elected officials after years spent recovering from the scandals of yesteryear…

Additional reservations about the bill came from McDuffie and Todd during the Nov. 20 deliberations.

“What concerns me most is [that] this bill will create traps for people to fall into,” McDuffie said…

Todd said that disenfranchising some people is a misguided approach that will not attack the real problem. “We can’t legislate out of existence unscrupulous people,” he said.

Todd also took exception to the assertion that contributors gain access because of their donations. “Everyone gets access whether you’ve donated to my campaign or not,” he said.

Charlotte Observer: North Carolina GOP proposes another retooled elections board

By Associated Press

Republicans in the North Carolina legislature have offered another alternative to resolve a longstanding legal battle with Democratic Gov. Roy Cooper over the state elections board.

A House bill filed late Monday would separate duties of the elections panel between a five-member board administering state elections and an eight-member board handling lobbying, ethics and campaign finance matters.

The governor’s party likely would hold three of the five positions on the proposed elections board. No party could hold more than half the seats on the lobbying, ethics and campaign finance board.

Judges in October struck down the latest version of a nine-member combined elections panel, saying the governor lacked the control warranted to him over an executive agency.

Alex Baiocco

Alex Baiocco