New from the Institute for Free Speech
The Institute for Free Speech today urged the Supreme Court to reverse a lower court ruling that could effectively close the courthouse doors to lawsuits challenging IRS regulations that impact free speech. The Supreme Court will hear arguments in the case, CIC Services, LLC v. IRS, in the next term.
“The IRS has a history of misapplying regulations to restrict free speech. The lower court ruling threatens the ability of courts to step in when First Amendment rights are violated,” said Institute for Free Speech Attorney Tyler Martinez.
The Sixth Circuit Court of Appeals barred a lawsuit brought by CIC Services, LLC against informal IRS guidance. Citing the Anti-Injunction Act (AIA), a federal law that prevents lawsuits intended to restrain the assessment or collection of taxes, the court ruled that fines for noncompliance with the guidance constituted a “tax” that could not be challenged in court until paid.
That rationale could force nonprofits to pay potentially devastating penalties before challenging IRS actions as unconstitutional, the Institute for Free Speech explained in its brief. Few groups have the resources to gamble on a “pay now, fight later” system. Instead, most will choose not to engage in activity, including First Amendment-protected speech, that could potentially trigger a penalty.
SCOTUSblog: John Roberts: Mr. First Amendment
By Ronald Collins and David Hudson
[W]hen it comes to majority opinions, [Supreme Court Chief Justice John] Roberts is often at the control center. He has written the opinion for the court in a whopping 15 First Amendment free expression cases. That’s more than twice as many majority opinions in these cases as his colleagues, and it’s a feat that gives his jurisprudence staying power…
In 95% of the free expression cases decided during his tenure, Roberts has been in the majority. Equally revealing, Roberts has assigned the lead opinion to himself almost 29% of the time. In other words, there is something special about this genre of cases, something that speaks to a grander vision of who Roberts is and what he hopes the court bearing his name might be remembered for…
In other words, Roberts is quite at home in the house of the First Amendment – it is perhaps his favorite jurisprudential dwelling.
RealClearPolitics: Sen. Whitehouse’s Dark-Money Dilemma
By Susan Crabtree
Democratic Sen. Sheldon Whitehouse has repeatedly warned against the dangers of “dark-money” political groups taking millions of donations from special interest groups, arguing, when pressed, that he’s equally concerned about both liberal and conservative groups that don’t disclose their donors.
But the Rhode Island senator apparently sees no contradiction in giving speeches to liberal groups that accept money from secret Democratic donors, as he did last week, telling the audience that GOP dark money is undermining the U.S. judiciary and the rule of law. Additionally, Whitehouse told a reporter last year he would accept donations from liberal dark-money groups…
Whitehouse, along with Sen. Dianne Feinstein, a California Democrat, both members of the Senate Judiciary Committee, introduced a bill that would require groups spending $50,000 in a calendar year on advertisements linked to federal judicial nominations to release the names of their donors who give more than $5,000. The measure would also require ads related to judicial confirmations to disclose who is funding the spot…
Contacted about the bill’s intent late last week, Whitehouse spokesman Rich Davidson said the disclosure rule “applies equally to all regardless of ideological bent.”
That comment came the same day Whitehouse spoke about the evils of conservative dark-money judicial groups at an event hosted by the American Constitution Society, or ACS, a liberal dark-money judicial activist group that also doesn’t disclose many of its donors, first reported by the Daily Caller.
Persuasion: A Taxonomy of Fear
By Emily Yoffe
We live in a time of personal timorousness and collective mercilessness.
There might seem to be a contradiction between being fearful and fearless, between weighing every word you say and attacking others with abandon. But as more and more topics become too risky to discuss outside of the prevailing orthodoxies, it makes sense to constantly self-censor, feeling unbound only when part of a denunciatory pack.
Institutions that are supposed to be guardians of free expression-academia and journalism in particular-are becoming enforcers of conformity…
The cultural rules around hot button issues are ever-expanding. It’s as if a daily script went out describing what’s acceptable, and those who flub a line-or don’t even know a script exists-are rarely given the benefit of the doubt, no matter how benign their intent. Naturally, people are deciding the best course is to shut up. It makes sense to be part of the silenced majority when the price you pay for an errant tweet or remark can be the end of your livelihood.
Right to Protest
Americans for Prosperity: Alleged civil liberty violations by federal agents in Portland must be investigated
Law enforcement and other public officials play a dual role in the criminal justice system: ensuring our communities are safe while protecting the constitutional rights of citizens. The deployment of federal agents to quell a violent faction of protests in Portland, Oregon, has raised questions on both fronts.
“Peaceful protest, free expression, and free assembly are foundational rights for all Americans, as well as essential catalysts for progress,” said Americans for Prosperity’s David Voorman. “America has real injustices to confront, and they are best overcome through peaceful means. We condemn the violence and destruction of property that Portland and other cities have endured. But we also strongly believe that violence cannot be a justification to shut down peaceful rallies or harass peaceful protestors.”
By Jeffrey A. Trachtenberg
A group of journalists at The Wall Street Journal and other Dow Jones staffers sent a letter on Tuesday to the paper’s new publisher, Almar Latour, calling for a clearer differentiation between news and opinion content online, citing concerns about the Opinion section’s accuracy and transparency.
The letter, signed by more than 280 reporters, editors and other employees says, “Opinion’s lack of fact-checking and transparency, and its apparent disregard for evidence, undermine our readers’ trust and our ability to gain credibility with sources.”
The letter cites several examples of concern, including a recent essay by Vice President Mike Pence about coronavirus infections. The letter’s authors said the editors published Mr. Pence’s figures “without checking government figures” and said the piece, “There Isn’t a Coronavirus ‘Second Wave,'” required a correction.
The letter says many readers don’t understand that there is a wall between the Journal’s editorial page operations…and the news staff…
The letter also proposes that “WSJ journalists should not be reprimanded for writing about errors published in Opinion, whether we make those observations in our articles, on social media, or elsewhere.”
The letter doesn’t challenge the right of the editorial page to offer its own opinions and analysis.
By Josh Feldman
Fox News’ Tucker Carlson returned from vacation Monday night and ended his program going after the New York Times, saying they will be running “a story about where my family and I live.”
“As a matter of journalism, there is no conceivable justification for a story like that,” he said. “The paper is not alleging we’ve done anything wrong and we haven’t. We pay our taxes. We like our neighbors. We’ve never had a dispute with anyone. So why is the New York Times doing a story on the location of my family’s house? Well, you know why. To hurt us, to injure my wife and kids so that I will shut up and stop disagreeing with them.”
By Bill Theobald
Democracy reform advocates have gone public with a concern they’ve been harboring privately for months: Joe Biden and the Democrats are not making fix-the-system proposals a big enough part of their campaign.
A coalition of 29 groups pressed the party’s platform committee on Monday “to adopt a sweeping pro-democracy set of reforms, and make their passage and implementation a top priority in 2021.”
Although Biden is viewed as a reliable supporter of items on the group’s agenda – expanding voting rights, curbing money’s sway over campaigns, bolstering government ethics and calibrating the balance of power – the former vice president is seen by advocacy groups as giving such desires insufficient notice…
The letter from the so-called Declaration for American Democracy coalition was sent to Atlanta Mayor Keisha Lance Bottoms, chairwoman of the platform drafting committee and an apparent potential running mate…
The letter outlines four general areas that need to be addressed in the platform [including] ending the corrupting power of big money in politics by advancing a constitutional amendment effectively overturning the Citizens United decision by the Supreme Court a decade ago, and by requiring disclosure of the sources of so-called dark money contributions.
By Dave Levinthal
Prominent conservative political committees are increasingly making bulk book purchases, using titles such as former House Speaker Newt Gingrich’s “Trump and the American Future” as fundraising incentives and supporter gifts.
These purchases also juice sales numbers that help propel politicos’ books onto bestseller lists. (Of late, some bestseller-list editors have dinged books that heavily rely on bulk sales, with The New York Times saying its editors “scrutinize sales reports with a practiced eye to uncovering manipulation.”)
Online Speech Platforms
By Kim Lyons
Facebook has removed one of the largest anti-mask groups on its platform for violating its policies against spreading misinformation about COVID-19.
The About section of the public group Unmasking America! – which had more than 9,600 members – described it as “here to spread the TRUTH about masks!” It made several claims which have been widely debunked about masks obstructing oxygen flow and having a negative psychological impact. “It is a psychological anchor for suppression, enslavement and cognitive obedience. When you wear a mask you are complicit in declaring all humans as dangerous, infectious and threats,” the post stated.
It is one of dozens of such groups easily found in a search for “unmasking” on Facebook…These Facebook groups are for people who don’t want to wear masks, and there are a lot of them.
Facebook’s action came after an inquiry about the group from The Verge. “We have clear policies against promoting harmful misinformation about COVID 19 and have removed this group while we review the others,” Facebook spokesperson Dami Oyefeso said in an email.
By Taylor Hatmaker
A new policy-focused nonprofit that emerged from the recent wave of big tech scrutiny is calling for members of Facebook’s Oversight Board to either step up or step down. In an open letter, Accountable Tech urges the five U.S.-based Facebook Oversight Board members to “demand the Board be given real authority” or quit their positions.
“Each of you were selected to serve on this Board because of your outspoken commitment to free expression, human rights, and democratic values,” the letter’s authors write. “Now is the time to uphold those principles. We humbly ask that you refuse to be complicit in this Facebook charade — that you demand sweeping and immediate changes, or walk away.”
Accountable Tech is a progressive project founded by grassroots campaign organizer and director of the 2017 Tax March, Nicole Gill, and Jesse Lehrich, who served as foreign policy spokesperson for Hillary Clinton’s 2016 presidential bid. Lehrich worked on the Clinton campaign’s response to Russian disinformation efforts that year, giving him a front row seat to emerging online threats to U.S. elections.
The Hill: Deepfakes threaten the 2020 election
By Jeremy Bash and Michael Steed
The national security implications of deep fakes have been identified for years by intelligence agencies and congressional committees…
Most concerning are the deep fakes that could occur around the 2020 presidential campaign and election, particularly as voting patterns shift due to COVID restrictions. Messages about polling places, voting methods (mail-in, etc.) and whom to vote for are already ripe for disinformation campaigns from our adversaries looking to sew chaos. But imagine a deep fake campaign in which the voices Americans trust – governors, state officials, prominent community leaders, faith leaders, veteran journalists – are hijacked and swapped out for alternative messages. A campaign to trick voters into casting their ballots incorrectly – or at the wrong place or time – could disenfranchise large numbers of Americans.
Congress and the executive branch must work urgently to prevent deep fake cyberattacks in the run-up to the election. Specifically, Congress should implement the recommendations of the bipartisan National Cyberspace Solarium Commission. Many of its recommendations are before Congress now as it considers the annual defense bills.
By Ben Collins and Brandy Zadrozny
Twitter announced Tuesday that it has begun taking sweeping actions to limit the reach of QAnon content, banning many of the conspiracy theory’s followers because of problems with harassment and misinformation.
Twitter will stop recommending accounts and content related to QAnon, including material in email and follow recommendations, and it will take steps to limit circulation of content in features like trends and search…
The spokesperson said that while the targeted enforcement fell under Twitter’s existing platform manipulation rules, its classification of QAnon material and behavior as coordinated harmful activity was a new designation. The spokesperson said Twitter was acting now because of rising harm associated with the conspiracy theory.
Candidates and Campaigns
By Michelle Ye Hee Lee and Anu Narayanswamy
President Trump’s campaign, the Republican Party and two affiliated committees have spent more than $983 million since 2017, a record-breaking sum toward a reelection effort at this point in the presidential campaign, new filings show.
The Trump campaign alone has spent $240 million…
Despite the historic spending, Trump has been slipping in national polls and approval ratings amid the spread of the novel coronavirus and a weakened economy. Biden holds a double-digit lead nationally and Trump faces a narrow path to victory through electoral-college majority in battleground states, according to a Washington Post analysis.
The challenges facing Trump despite his record finances underscore the limitations of campaign spending on winning voters’ confidence, said Michael Malbin, co-founder and director of the Campaign Finance Institute, a division of the National Institute on Money in Politics.
“Nothing compares to the daily impression he’s making, with his handling of the pandemic and with the state of the economy. If those turn around, his support will turn around. If they don’t, no amount of advertising will help,” Malbin said.
Columbus Dispatch: Ohio House Speaker Larry Householder arrested in $60 million bribery case
By Marc Kovac, Randy Ludlow, and Rick Rouan
Ohio House Speaker Larry Householder and four colleagues were arrested by federal officials Tuesday as part of a bribery investigation involving the state’s $1 billion nuclear plant bailout and Householder’s maneuverings to secure support to lead the legislative chamber.
Householder, 61, R-Glenford, is charged in the alleged racketeering conspiracy involving the funneling of energy company funds through Generation Now, a dark money group formed by a longtime associate.
Some of the proceeds allegedly were used to back the campaigns of legislative candidates supportive of Householder’s run for speaker and to personally enrich Householder…
U.S. Attorney Dave DeVillers called the case “likely the largest bribery, money-laundering scheme ever perpetrated against the people of Ohio.” …
Generation Now also was charged…
[F]ederal officials say they have a recording that shows [that Generation Now was] secretly was controlled by Householder. Federal officials have a recorded conversation of Clark saying “Generation Now is the Speaker’s….”
An 82-page criminal complaint alleges Generation Now received about $60 million in exchange for Householder and other’s help in the passage of House Bill 6 and the blocking of a ballot initiative to overturn the legislation…
Documents added, “The millions paid into the entity were akin to bags of cash – unlike campaign or PAC contributions, they were not regulated, not reported, not subject to public scrutiny – and the enterprise freely spent the bribe payments to further the enterprise’s political interests and to enrich themselves.”