In the News
The Dispatch: Democrats’ Election Bill Is a Disaster for Free Speech
By Ryan Morrison
If Congress passed a law that put your name and address on the internet because you gave money to a nonprofit, would it scare you? If politicians wrote a law that matched their campaign donations by 600 percent with public money, would you be angry? And if you were forced to fill out a bunch of complicated government forms to promote some Facebook posts about the Biden administration’s school reopening guidelines, would you speak out or remain silent? Congress is trying to enact all this and more right now.
These proposed regulations lurk in the so-called “For the People Act,” (aka H.R. 1 and S. 1), which the House passed without any Republican support last week. It’s been hailed as an expansion of voters’ rights, but its real effect would be to chill political speech.
Under the proposed law, an advocacy group that so much as mentions the name of a member of Congress in an ad about important issues will almost always have to expose its major donors. For example, a group could advocate for or against “Biden’s COVID Recovery Bill” and the new regulations will apply. The donors may not know about the ad and may not even agree with its message. It doesn’t matter. They still will be listed on the group’s government filings and posted on the internet for the world to see…
The issues described above, and more, are documented by my organization, the Institute for Free Speech.
KMOX: Overnight America (Audio)
Hosted by Ryan Wrecker
David Keating, President of the Institute for Free Speech, discusses H.R. 1.
National Review: The Weekend Jolt
By Jack Fowler
When it comes to controlling political speech, Alex Baiocco knows that Democrats never stop scheming. From the piece:
Democrats in Congress have introduced legislation to get us halfway there. H.R. 1 (S.1 in the Senate), takes aim at your “outside” voice, which Biden wants to silence. The bill also demonstrates how efforts to silence independent groups won’t stop at speech urging fellow Americans to vote for or against candidates. H.R. 1’s provisions for “Stopping Super PAC-Candidate Coordination” reach far beyond super PACs and would capture speech that has nothing to do with elections.
Any organization that discusses policy issues could trigger the sweeping “coordination” standards. Communications about legislation made routinely by advocacy groups today would be illegal under H.R. 1.
Say a civil-rights group publishes an analysis highlighting areas of a criminal-justice reform bill that could be improved. The sponsor of the legislation reaches out to the group with questions. In the course of conversation, the senator mentions that she plans to highlight the bill at an upcoming campaign event. Just like that, this policy discussion has triggered a speech ban. The group has engaged in “communication . . . regarding the candidate’s or committee’s campaign advertising, message, strategy, policy, polling, allocation of resources, fundraising, or other campaign activities.”
As a result, the group is barred from spending a single penny on speech that “promotes or supports” the senator, “regardless of whether the communication expressly advocates the election . . . of a candidate.” This vague language applies to communications made at any time, not just close to an election.
Ricochet: How to Fix Our Elections the Right Way
By Kelly D. Johnston
I won’t go into [H.R. 1’s] voluminous flaws here. That’s been done extensively and in great detail by several excellent organizations and journalists, including the Public Interest Legal Foundation, the Institute for Free Speech, the Heritage Foundation, and others.
Supreme Court
SCOTUSblog: Court revives lawsuit from student seeking nominal damages for free-speech violation at public college
By Amy Howe
The Supreme Court on Monday issued a major ruling in a dispute over free speech on the grounds of a public college. By a vote of 8-1 in Uzuegbunam v. Preczewski, the court allowed a Georgia student to proceed with a First Amendment lawsuit against college officials even after the officials abandoned the speech restrictions at issue…
In an opinion by Justice Clarence Thomas, the court explained that because [student Chike] Uzuegbunam showed that he was injured and that his injury resulted from the officials’ conduct, the question before the justices was whether he meets the third criterion to have a legal right to sue: Is he seeking a remedy that is likely to correct the constitutional violation in the case?
Thomas began by looking back at the role of nominal damages in early English and American law. It was “well established,” he explained, that nominal damages were available when rights were violated, even “without furnishing any evidence of actual damage.” Otherwise, Thomas observed, there would have been no remedy at all for some violations, “such as due process or voting rights, that were not readily reducible to monetary valuation.”
Because nominal damages were available as a remedy in early English and American law, Thomas continued, a request for nominal damages will meet the third criterion to have a legal right to sue as long as the plaintiff’s claim is based on a violation that has already finished.
[Ed. note: The Institute for Free Speech filed an amicus brief in support of the petitioners in Uzuegbunam v. Preczewski. Former IFS Attorney Zac Morgan also wrote about the case in National Review.]
National Review: Left-Wing Groups Break from Whitehouse, Dems in Donor Disclosure Case
By Brittany Bernstein
The American Civil Liberties Union and other progressive groups have filed a brief in support of a Supreme Court challenge to California’s donor disclosure rule over First Amendment concerns, positioning themselves in opposition to Senator Sheldon Whitehouse (D., R.I.) and other Democrats who have decried “dark money” political activity.
The rule in question requires all charities that raise money in California to disclose donors to the state attorney general, which opponents argue will deter prospective donors and members.
Whitehouse has called on the Justice Department to reverse course and support the rule in the Supreme Court, though a number of progressive groups with which the senator usually aligns have argued that donor anonymity is key to their fundraising efforts.
The NAACP Legal Defense and Education Fund, the Knight First Amendment Institute at Columbia University, the Human Rights Campaign, and PEN America have joined the ACLU in filing the brief in support of a case brought by the Americans for Prosperity Foundation, a Koch-backed advocacy group, against California’s rule, which is over two decades old.
Wall Street Journal: Amicus Briefs Inundate Supreme Court
By Jess Bravin
Does the Supreme Court have too many secret admirers?
Some critics say yes, thanks to a flood of friend-of-the-court briefs advocating specific outcomes in high-stakes cases, sometimes with multiple briefs in a single case tracing their funding to undisclosed common sources.
A Supreme Court rule requires that briefs filed by outside groups or individuals-known as amicus curiae, the Latin legal term for friends of the court-disclose if they were funded by a party to the case or its lawyer, or whether anyone other than an outside group’s member or attorney contributed money to their preparation.
That provision “is very easy to evade,” says Paul Collins, a political-science professor at the University of Massachusetts Amherst who has studied the influence of amicus briefs. “Wealthy individuals and corporations can donate money to an interest group, it puts that money in a general fund, and then uses the general fund to file an amicus brief,” Mr. Collins said. “And that donation doesn’t fall under the Supreme Court’s current disclosure rules.” …
“By requiring the disclosure of those who make a monetary contribution specifically intended for a particular amicus brief, the rule provides information about funding directly aimed at advocating specific positions before this Court,” the clerk of the Supreme Court, Scott Harris, wrote in a February 2019 letter to Sen. Sheldon Whitehouse (D., R.I.), who had written to recommend greater transparency. “Such disclosures make clear, for example, whether a party or its counsel might be controlling the arguments advanced by others,” Mr. Harris wrote.
The Courts
Courthouse News: Twitter Sues Texas AG Over His Demand for Internal Documents
By Carson McCullough
Twitter claims in a lawsuit filed Monday that Texas Attorney General Ken Paxton is abusing his authority to intimidate and harass the social media giant in retaliation for the company’s decision to ban former President Donald Trump from the platform.
The lawsuit, filed Monday evening in the Northern District of California, alleges that Paxton has used his authority as the state’s highest law enforcement officer to wrongfully demand scores of Twitter’s confidential documents relating to its internal moderation processes. The company says this demand was a reaction to Twitter’s decision to remove Trump’s account in the final days of his presidency following the deadly insurrection at the U.S. Capitol on Jan. 6.
Congress
USA Today: Democrats’ election reform bill attacks anonymous political speech
By Christian Schneider
A number of [H.R. 1’s] speech regulations echo those of the famous Bipartisan Campaign Reform Act of 2002 (colloquially known as “McCain-Feingold”), which has subsequently been dismantled by the Supreme Court on First Amendment grounds.
The most famous of these rulings, of course, was 2010’s Citizens United v. the Federal Election Commission, which effectively got the government out of the business of banning movies, books and campaign ads critical of politicians.
Those same political speech protections extend to anonymous speech, which has been a cornerstone of activism since a trio of Founding Fathers banged out The Federalist Papers under the name “Publius.” Benjamin Franklin famously wrote political tomes under names like “Benevolus,” “Silence Dogood,” “Caelia Shortface” and “Martha Careful.”…
It simply makes no sense that voting should be strictly anonymous, while speech – or merely talking about voting – should be subject to legal disclosure regulations. If made law, HR1 would require a ridiculous scheme in which the federal government would have to decide what tweets, videos and other advertisements to regulate based on what constitutes “political speech.” In an era when more people have the ability to use social media to speak on political matters, regulation of such speech is nearly an impossibility.
Or, as Chief Justice John Roberts has said, “We don’t put our First Amendment rights in the hands of FEC bureaucrats.”
Federalist: 15 Insane Things In Democrats’ H.R. 1 Bill To Corrupt Elections Forever
By Joy Pullman
Here are just some of the unconstitutional, absurd, nakedly partisan, and crime-assisting provisions in [the For the People Act] that 220 House Democrats voted for and every House Republican voted against…
- Unleash Mobs on Political Donors
If passed, the bill would require that political speakers and nonprofit organizations publish the identities of their donors. This would create blacklists for leftist activists to target to prevent their political opponents from the opportunity to speak in public, note the attorneys general.
In addition, the bill would require massive compliance costs for “candidates, citizens, civic groups, unions, corporations, and nonprofit organizations,” says the Heritage Foundation. “Many of these provisions violate the First Amendment, protect incumbents, and reduce the accountability of politicians to the public; its onerous disclosure requirements for nonprofit organizations would subject their members and donors to intimidation and harassment.”
Even the leftist American Civil Liberties Union expressed concern about these provisions in a letter to top House Democrats. These sections of H.R. 1 “could harm political advocacy and expose non-profit donors to harassment and threats of violence should their support for organizations be subject to forced disclosure,” the ACLU wrote.
The Hill: House Democrats push Facebook to ‘take responsibility’ for placement of gun accessory ads
By Rebecca Klar
House Democrats on the Energy and Commerce Committee on Monday urged Facebook to be more transparent around its policies on the placement of ads, specifically advertisements for gun accessories.
The Democrats called on the social media giant to make “substantive changes” to its policies on the placements of ads in light of reports of ads showing gun accessories and protective equipment next to content that “amplified election misinformation.” They said similar ads also appeared next to news about the insurrection at the Capitol after Jan. 6
“Targeting ads in this way is dangerous and has the potential to encourage acts of violence,” the Democrats wrote in a letter to Facebook on Monday.
“With more than 100 million daily Facebook users in the United States, it is paramount that Facebook take responsibility for where it places advertisements and what those advertisements promote,” the Democrats added. “Furthermore, Facebook should inform advertisers about surrounding content, and make the necessary changes to guarantee that Facebook and companies’ ad dollars are not further supporting or sowing seeds of hate and distrust throughout the country.”
The lawmakers said it is Facebook’s “moral obligation to take action regarding ads that stoke aggression.”
Online Speech Platforms
Protocol: Tech spent years fighting foreign terrorists. Then came the Capitol riot.
By Issie Lapowsky
Despite the heavy-handed approach to international jihadism, tech giants have applied a notably lighter touch to the same sort of xenophobic, racist, conspiratorial ideologies that are homegrown in the U.S. and held largely by white Westerners. Instead, they’ve drawn drifting lines in the sand, banning explicit calls for violence, but often waiting to address the deranged beliefs underlying that violence until something has gone terribly wrong…
Interviews with more than a dozen people who have worked on these issues at Facebook, Twitter and Google or inside the government shed light on how tech giants’ defenses against violent extremism have evolved over the last decade and why their work on domestic threats lagged behind their work on foreign ones.
Candidates and Campaigns
The Hill: RNC fires back at Trump, says it ‘has every right’ to use his name in fundraising appeals
By Jonathan Easley
The Republican National Committee (RNC) on Monday dismissed a cease-and-desist letter from former President Trump’s attorneys, arguing that the GOP campaign arm has the right to use Trump’s name in its fundraising efforts.
The letter from RNC chief counsel Justin Riemer says the GOP “has every right to refer to public figures as it engages in core, First Amendment-protected political speech, and it will continue to do so in pursuit of these common goals.”
The letter was sent to Alex Cannon, the counsel for Trump’s Save America PAC, which sent a cease-and-desist letter to the RNC, the National Republican Senatorial Committee (NRSC) and the National Republican Congressional Committee over the weekend demanding the groups stop using Trump’s name in their fundraising appeals.
The States
Courthouse News: Texas Republicans Take On Social Media Titans in ‘Deplatforming’ Bill
By Cameron Langford
Texas Republicans have proposed a bill that would open social media companies up to court-ordered fines for barring users from their platforms. The lawmakers claim the companies are censoring conservative viewpoints, but critics say the legislation is a nonstarter with a “First Amendment problem.”
Dubbed “Protect Free Speech on Social Media,” Senate Bill 12 is backed by two of the most powerful figures in Texas state government, Lieutenant Governor Dan Patrick and Governor Greg Abbott, both Republicans and Christian conservatives.
“Big tech’s efforts to silence conservative viewpoints is un-American, un-Texan, and it is unacceptable, and pretty soon it’s going to be against the law in the state of Texas,” Abbott said at a recent press conference alongside the bill’s author, state Senator Bryan Hughes, an East Texas Republican.
Hughes detailed the bill Monday in a Texas Senate State Affairs Committee hearing in which the panel heard testimony from tech company representatives who oppose it.
Hughes said SB 12 would apply to social media companies with more than 100 million users, such as Facebook, Twitter and Google, the owner of the video sharing site YouTube, which he said are the “modern public square” as the main sources of information about current events and facilitators of public discourse in America.
