Daily Media Links 1/26: Polling-place speech restrictions collide with modern free-speech doctrine, Where free speech should be promoted, free speech is under attack, and more…

January 26, 2018   •  By Alex Baiocco   •  
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New from the Institute for Free Speech

Institute for Free Speech to Handle Appeal in Tennessee Sign Case

The Institute for Free Speech yesterday notified a federal court and Tennessee state officials that it will represent William H. Thomas, Jr. in the state’s appeal of a ruling that Tennessee’s sign rules are unconstitutional. Last March, a federal judge ruled for Thomas, saying Tennessee law violated the First Amendment by creating “an unconstitutional, content-based regulation of speech.”

Mr. Thomas owns several roadside signs. This appeal concerns one such sign, which Mr. Thomas has used to express various non-commercial messages and opinions, such as cheering on U.S. athletes during the Olympics and celebrating “the glory of the season” during the holidays. Tennessee has sought to tear down Mr. Thomas’s sign, but crucially, it would not attempt to do so had it advertised on-site commercial activity or the sale of his property. Such ads are exempt under the law governing billboards in Tennessee. So if a nearby auto body shop wanted to advertise its sale on tires with the same-sized billboard, it could do so. As a result of this exemption, the state must look to a sign’s content to determine whether it should be regulated. This creates a major First Amendment problem…

The case, known as Thomas v. Schroer, is currently before the Sixth Circuit Court of Appeals. 

On Trolls, Tweets, and Free Speech

By Brad Smith

Lately it seems to have become a sophomoric sport among some who regularly oppose our efforts to protect and expand free speech to try to hijack our resources for their own partisan purposes…

While we will accordingly set our own agenda, we can’t help but notice that our critics only call us out for not denouncing dumb things said or done by Republicans and conservatives. We have a long, well documented history of criticizing such things (see e.g. here , here , here , here and here for just a small, random sampling over the years). Then there’s stuff like suing the Republican Lt. Governor and Attorney General of Utah, or the Republican Attorney General in Indiana for their actions contra free speech. My personal history of taking on powerful Republican senators and the Republican President when they are wrong well precedes founding of IFS, see e.g here. So when a group that defines itself as part of the partisan “resistance” accuses us of only criticizing one side, we appreciate the humor. But of necessity, we can’t, and don’t try, to cover every foolish thing said about free speech, or, for that matter, about us. We let anti-speech sentiments of Senator Bernie Sanders and Commissioner Ellen Weintraub pass all the time, for example, but our pro-regulatory critics have never worried about that on twitter.

Supreme Court

SCOTUSblog: Symposium: Polling-place speech restrictions collide with modern free-speech doctrine

By Ken Klukowski

In this case, the discussion revolves around why Minnesota must go beyond blocking vote solicitations and campaigning to also ban T-shirts, baseball caps and other types of passive communication unrelated to candidates and issues on the current ballot in order to stop fraud and intimidation. In today’s environment, people can regard all sorts of innocuous messages as conveying some kind of political content.

Insofar as Burson requires the application of strict scrutiny, Minnesota’s law fails that demanding test. While most lawsuits presume a statute to be valid and put the burden of proof on the challenger, strict scrutiny inverts that approach, so that courts presume the law is invalid, and the burden is on the government to save it. As Justice Clarence Thomas wrote in his separate opinion in the 2013 case Fisher v. University of Texas, strict scrutiny requires the government to provide a “strong basis in evidence” that the means employed by the government truly achieves the compelling public interest at issue.

The Minnesota attorney general and local officials offer virtually no evidence as to why banning NRA hats, Gadsden flag T-shirts and buttons that are irrelevant to an election is necessary to prevent election fraud and voter intimidation. They identified no would-be voters who swore that they ran in fear from the voting location before casting a ballot upon seeing “Don’t Tread on Me” on a T-shirt.

SCOTUSblog: Symposium: Whose side is the First Amendment really on?

By Daniel I. Weiner and Christopher R. Deluzio

As the petitioners in Minnesota Voters Alliance v. Mansky would have it, the case is a classic First Amendment dispute. In one corner, an intrepid band of would-be speakers. In the other, a misguided bureaucracy trying to silence them in the name of public order. It is understandable that the petitioners would want to frame the case this way, but accepting their frame misses the central problem the court must resolve. The First Amendment protects much more than the right to speak. Among other things, as we have been reminded throughout this term, the First Amendment also safeguards the right to vote. The petitioners’ expression – especially their desire to wear “Please I.D. Me” buttons urging poll workers to check identification, despite Minnesota having no such requirement – has the potential to burden voting rights. Voter ID rules are already notorious for sowing confusion at the polls. Moreover, the “Please I.D. Me” buttons appear to have been connected to a volunteer “ballot security” operation of the sort that has been shown to create an intimidating environment for some voters.

In short, this is not a case that pits the First Amendment against some unrelated government interest. Instead, the question is whether Minnesota can safeguard First Amendment-protected voting rights by prohibiting potentially misleading, intimidating or otherwise disruptive messages for the short time a putative speaker is physically present at a voting location.

Free Speech

Fox News: Where free speech should be promoted, free speech is under attack

By Associate Attorney General Rachel Brand

When public universities restrict speech, it has constitutional implications as well. The First Amendment prevents government institutions from imposing speech restraints such as arduous permitting restrictions or arbitrary curfews, particularly if the school discriminates against certain viewpoints. Yet this is precisely what many university speech policies do.

The U.S. Department of Justice is not standing on the sidelines while public universities violate students’ constitutional rights – we are backing free speech lawsuits against universities that violate the First Amendment. Thursday, we are filing a brief supporting a group of Berkeley University students who allege that the University’s policy imposing stricter rules on controversial speakers violates the First Amendment. This is the third suit in which we have filed such a brief, and it will not be the last.

Defending the fundamental constitutional rights of all Americans is a core part of the Department’s mission, and defending free speech rights is particularly important. Free speech is not only a fundamental right, but, as James Madison said, the “effectual guardian of every other right.” Free speech enables citizens to advocate for all their other civil rights and is the single most powerful bulwark against government tyranny.

Corporate Speech

Recode: The curious case of Burger King’s sudden support for net neutrality

By Tony Romm

The debate over net neutrality has a little bit of everything: Activists, protests, well-heeled corporate lobbyists, name-calling, Russian trolls, Twitter memes, Twitter abuse, multiple late-night television rants and even a scary death threat or two.

And now it’s become a branding exercise…

It is the age of brands – or rather, #woke brands, those hyper-aware corporate behemoths with gargantuan marketing departments that see in every social and political cause du jour an opportunity for 15 minutes of web infamy.

Net neutrality may seem like a wonky telecom battle with little relevance to a fast-food giant. But it has attracted millions of Americans’ comments and seemingly touched a nerve, particularly among millennials – a fickle crowd that Burger King seeks now to court with its ads.

Donors

Fortune: Megadonor Tom Steyer Won’t Give to Democratic Groups Because of the Shutdown Deal

By Alana Abramson

Hedge fund manager and Democratic billionaire mega-donor Tom Steyer said Wednesday that he will refrain from donating to national Democratic Party committees following the vote in Congress to re-open the government before reaching an immigration deal…

The DNC said in a statement that it welcomes the work of Steyer’s organization, NextGen America.

“The more money flowing toward efforts to elect Democratic candidates the better,” said DNC spokesman Michael Tyler.”We saw last fall in Virginia – where NextGen, among many other emerging progressive groups, deployed dozens of organizers across the state – how successful we can be when we’re united in our efforts to elect Democrats up and down the ballot.” …

“At this point what we’ve seen from the party committees is we are at a point where we can definitely stand up for what we think is right more directly by the programs that we’re doing,” [Steyer] explained. “I know that people focus on these FEC controlled election contributions but overwhelmingly, what we do is go directly to the American people.”

The States

KTVZ Oregon: Bill targets big money in Oregon politics

By Eric Tegethoff, Oregon News Service

Lawmakers will introduce a bill next month that aims to empower small donors in Oregon elections.

Under House Bill 4076, known as the Small Donor Elections bill, state legislative candidates would agree only to accept donations of $250 or less. In exchange, the donations would be matched 6-to-1 through limited public funds…

Kate Titus, executive director of the government accountability group Common Cause of Oregon, says candidates could shift their focus away from big political donors with this bill. But she notes cost is a hurdle.

“The cost, I think, has kept us from putting this reform in place in more places,” says Titus. “But really it’s a bargain to use small amounts of public funds strategically in this way, so that we can own the election system ourselves and not let it be bought and paid for by special interests.”

Wisconsin State Journal: Scott Fitzgerald says election chief vote was illegal, heightening showdown with bipartisan commission

By Mark Sommerhauser

In voting to retain Haas, the bipartisan ethics panel defied state Senate Republicans – who voted Tuesday to oust Haas and Brian Bell, the top ethics official.

Ethics commissioners punted, in a Thursday meeting, on who should lead the agency in Bell’s absence. But Ethics Committee Chairman David Halbrooks, a Democrat, laid blame in multiple directions for a now-ended secret investigation into Gov. Scott Walker’s 2012 recall campaign, known as John Doe II. Republican outrage over that investigation led to the ouster of Bell and Haas.

Halbrooks’ targets, in remarks during the meeting and afterward, included Fitzgerald, R-Juneau; a fellow Democrat, Milwaukee County District Attorney John Chisholm; and Jefferson County Judge William Hue.

Instead of faulting Bell – for whom there is no evidence he played a role in John Doe II – Halbrooks said lawmakers should blame Chisholm, whose office spearheaded the investigation.

Halbrooks said there’s “ample reason” for Walker to begin the process of removing Chisholm from office.

St. Louis Public Radio: Lawmakers want to place a firewall between candidates and political action committees

By Jason Rosenbaum

Missouri’s voter-approved contribution limits curbed the amount of money that some candidates could take from a political donor. What it didn’t do is stop a candidate from encouraging big contributors to send money to political action committees that could help their electoral pursuits.

That’s the upshot from a Missouri Ethics Commission opinion. Among other things, it says nothing in the contribution limits (known as Amendment 2) bars a candidate from fundraising on a PAC’s behalf. As long as the third-party group isn’t operating as “a second candidate” committee, a state-based candidate can tell donors to send huge amounts of money to a PAC that may run ads support their candidacy – or slamming their opponents.

For Rep. Gina Mitten, this opinion, which draws from prior rulings in the 1990s and 2000s, amounts to a huge setback for the state’s nascent donation limits. With the number of PACs growing since Amendment 2’s adoption, Mitten said lawmakers should make it more difficult for candidates to encourage lots of money to flow to third-party groups…

Missouri’s campaign finance statutes also allow candidates to directly steer money to politically-active nonprofits, which have been a prime topic of discussion in Missouri politics over the past year.

Alex Baiocco

Alex Baiocco