Daily Media Links 7/11: Texas Appeals Court Upholds IRS Test For Nonprofit Status, Law on Foreign Campaign Money Narrow, FEC Analysis Says, and more…

July 11, 2017   •  By Alex Baiocco   •  
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Free Speech

Washingtonian: Milo Yiannopoulos Says Metro’s Decision to Remove Book Ads Is “Unconstitutional”

By Benjamin Freed

The Washington Metropolitan Area Transit Authority is removing billboards posted around Metro stations for a new book by former Breitbart writer Milo Yiannopoulos, citing its rules against political and issue-oriented advertising…

WMATA told Yiannopoulos that the ads for his book violated two rules in particular: “Advertisements intended to influence members of the public regarding an issue on which there are varying opinions are prohibited” and “Advertisements that are intended to influence public policy are prohibited.”

But the billboards, as they appeared, displayed Yiannopoulos’s face, the book’s title, and a blurb describing him as “the most dangerous man on the internet,” not overt political content…

Yiannopoulous says he plans to push back on Metro’s decision with his ads. “We were not contacted by the DC [W]MATA or given an opportunity to speak with anyone before our ads began to be pulled down,” he writes. “We believe that the removal of our billboards constitutes unconstitutional viewpoint discrimination by a government regulator in violation of the First Amendment and are preparing our response now.”

Coverage Opinions: Declarations: The Coverage Opinions Interview With Floyd Abrams

By Randy Maniloff

He described the response to Citizens United in a piece appearing in The Nation: “When the Citizens United decision was released, many commentators treated it as a desecration. People who would enthusiastically defend the free speech rights of Nazis, pornographers and distributors of videos of animals being tortured or killed were appalled that corporations and unions should be permitted to weigh in on who should be elected president.”

On one hand, Abrams told me that he “anticipated that the decision would be disapproved of and disagreed with by most of the people with whom I tend to share political views.” But he added that he “did not anticipate the fierceness of the response to it and the fury with which it would be received.”… 

I asked Abrams whether, if the votes are there, Citizens United be overruled at some point or will the Justices feel bound by stare decisis? He tells me that it “almost depends how many years in the future you are looking. I’m confident that the four more liberal members of the Court, if empowered with an additional vote, would have been prepared to either overrule or significantly limit the scope of Citizens United. Indeed they tried to do so in the very next term.” 

Supreme Court

Cato: Protect Workers Against Union-Government Collusion

By Ilya Shapiro and Frank Garrison

Illinois law mandates that non-union public-sector workers like Mark Janus pay money for union collective-bargaining activities that they do not support. Collective bargaining in the public-sector often involves advocacy of quintessentially political questions, such as the amount of public worker wages, pensions, and other benefits that will be paid for with the public’s tax money. Thus, these government-compelled exactions-“agency fees”-give these workers a Hobson’s choice: Either sacrifice your First Amendment rights and fund political advocacy you may not like, or find other employment.

The Supreme Court upheld the constitutionality of these fees in Abood v. Detroit Board of Education (1977), but has since questioned Abood’s reasoning in Knox v. SEIU (2012) and Harris v. Quinn (2014). Two terms ago, the Court in Friedrichs v. California Teachers Association (2016) seemed primed to overrule Abood, but the untimely passing of Justice Antonin Scalia left the Court to split 4-4 on the question. . . Cato and the National Federation of Independent Business Small Business Legal Center are now supporting Janus in petitioning the Supreme Court to reconsider Abood once again…

The Supreme Court should take this case and reaffirm that the First Amendment protects against compelled speech and association of this kind.


Law360: Texas Appeals Court Upholds IRS Test For Nonprofit Status

By Christopher Crosby

A Texas federal judge on Friday upheld an Internal Revenue Service rule used to deny tax-exempt nonprofit status to a conservative group, saying the rule is not “unconstitutionally vague” and does not restrict free speech.

In denying Freedom Path Inc.’s motion for summary judgement, U.S. District Judge Sidney A. Fitzwater said the “facts and circumstances” test the IRS used to determine that the conservative group’s activities constituted political campaign intervention isn’t overbroad and therefore not unconstitutional on its face, according to Friday’s ruling…

“Freedom Path has not shown that Revenue Ruling 2004-6 contributes to viewpoint discrimination,” Judge Fitzwater said, adding that the U.S. Supreme Court prohibits penalties on speech, but not eligibility for tax exemption.

Instead, he noted that the rule in question – Revenue Ruling 2004-6 – cannot be considered unconstitutional because the Supreme Court has held that the denial of tax exemption isn’t equivalent to an infringement of free speech. “Further, Revenue Ruling 2004-6 does not on its face single out any viewpoint or inquire into a group’s intent,” Judge Fitzwater said.


Bloomberg BNA: Law on Foreign Campaign Money Narrow, FEC Analysis Says

By Kenneth P. Doyle

The Federal Election Commission may be severely constrained in what it can or will do to combat foreign influence in U.S. elections, a new analysis posted on the agency’s website suggests.

The commissioners have recently grappled with the foreign influence issue and are set to discuss it again in a July 13 meeting, according to the agenda.

Analyzing the current state of campaign finance laws and FEC precedents, the agency’s new “outreach” article says the law bars only a specific, narrow type of spending-money provided directly to a candidate, political party, or other group calling for votes for or against a candidate…

The FEC’s discussion scheduled for July 13 on the foreign money issue centers on proposals by Democratic Commissioner Ellen Weintraub. Citing the high-profile reports of Russian interference in the last election, Weintraub repeatedly has called for more aggressive action by the agency but has faced resistance from the FEC’s Republican commissioners.

The Media

Wall Street Journal: How Antitrust Undermines Press Freedom

By David Chavern

Whenever President Trump attacks CNN or berates the Washington Post, journalists and free-speech advocates rise up to defend the media and the First Amendment. Meanwhile, a greater threat to America’s news industry looms mostly unnoticed: Google and Facebook ‘s duopolistic dominance of online advertising, which could do far more damage to the free press than anything the president posts on Twitter.

The rapid growth of digital connectivity has pushed demand for information to unprecedented heights. Never in history have so many people consumed so much news. This is a boon for democracy. Although reporting is often an irritant to those in power, high-quality news and analysis is essential to any political system that depends on giving citizens the facts so they can draw their own conclusions…

The unique role news media continue to play in American politics and history makes it crucial to ensure a fairer fight for revenue between news publishers and these massive information gateways. Today, antitrust laws are insulating Google and Facebook from market forces. News publishers are committed to unleashing those forces to defend their investments in great journalism.

Candidates and Campaigns

Politico: Donald Trump Jr. in legal danger for Russia meeting about Clinton dirt

By Darren Samuelsohn

[H]is statements put him potentially in legal cross hairs for violating federal criminal statutes prohibiting solicitation or acceptance of anything of value from a foreign national…

Those potential troubles deepened Monday night with a fresh New York Times report alleging that Trump Jr. was sent an email before his meeting with Veselnitskaya indicating the information she had was part of a Russian plan to boost his father in the race against Clinton…

“If they accept the meeting on the understanding that they will be offered something of value – the opposition research – they are sending a clear signal that they would like to have it.”

[Robert] Bauer added that accepting a meeting where there’s an understanding of purpose “raises a question under the federal campaign finance law” for which Trump Jr. could be held accountable…

Former Bill Clinton White House counsel Jack Quinn said Trump Jr.’s meeting to discuss opposition research during a campaign “is not in and of itself illegal.” But Quinn nonetheless said it “will be a subject of exploration by Mr. Mueller.”

Just Security: Open Door to Moscow? New Facts in the Potential Criminal Case of Trump Campaign Coordination with Russia

By Bob Bauer

There is much more to know in evaluating the case that Mr. Trump and his campaign committed campaign finance violations in soliciting and receiving support from Russia, and assisting the Russians in their plan to influence the 2016 presidential election. There is now little doubt that there is such a case.  Its precise nature, and the full range and strength of the evidence available to support it, remain to be determined… 

What is becoming increasingly clear is that Mr. Trump and his campaign were open to whatever help the Russians would provide: they made that clear to the Russians, and took specific actions to invite and receive this foreign national assistance.  In response to the latest disclosure of Russian contacts, the campaign’s defense seems to be that it never checked whether the people from whom they were soliciting stolen emails and other negative information were Russians, much less connected to the Kremlin.  That may beggar belief; some may even find the claim perversely amusing.  But under campaign finance law, it is no joke.

The States

National Law Review: Kentucky Raises Contribution Limits in July, Adjusts Reporting

By Kevin Glandon

Starting this month, nearly all of Kentucky’s campaign contribution limits increase…

Perhaps the most substantial change is the establishment of building fund accounts for political party executive committees, which may now accept unlimited funds from corporations. Also of note is the elimination of an aggregate $10,000 or 50%-of-total-contributions limit on how much a candidate or slate of candidates may accept from certain committees…

Other changes include increased thresholds for campaign finance reporting and modified reporting dates…

Kentucky’s new campaign finance law follows a trend we have observed over the past ten years. As contributions to outside groups that are permitted to receive unlimited funds have surged, campaign resources have shifted away from candidates and parties and toward outside groups. One response to this dynamic has been a push to raise contribution limits to candidates and parties. As discussed during the legislative debate, Kentucky’s new law does just that. Expect more states to follow suit.

U.S. News & World Report: Something Rotten in the State of California

By Peter Roff

“The heads of six caucuses in the California Legislature are asking lobbying firms to provide them with demographic data – including race, ethnicity, gender and openly gay or lesbian orientation – on their employees,” The Sacramento Bee’s Taryn Luna reports…

If such a thing were proposed by members of a red state legislature, you can be sure the New York Times and CNN would be up in arms, egging on the social justice warriors who dominate politics now on the American left. Such surveys would be called un-American. Trade associations that refused to honor requests for information would win awards for defending the First Amendment…

There’s been a lot of talk about state officials who have refused to provide the presidential commission on the integrity of elections with voter data as it seeks to learn the truth about voter fraud in America – almost all of it favorable. Much of that data is publicly available and is regularly bought and sold in the political marketplace by list companies like L2. The data the California caucuses want is much more private in nature, yet the request is far less controversial.

Alex Baiocco

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