New from the Institute for Free Speech
By Alec Greven
Free expression is the lifeblood of democracy. Its effectiveness lies in its ability to channel deep disagreements towards productive social changes. While free societies need legal protections for speech, laws are only as effective as the cultural influences that safeguard them. A culture of free expression characterizes the level of tolerance a society extends to individuals and their willingness to voice dissenting opinions. Our society needs both strong laws and a robust culture that protects free speech.
The First Amendment prevents censorship from the government, but a culture of free expression goes beyond the law. It promotes open discourse in society, even in many private settings where the First Amendment does not apply. After all, it does not violate the First Amendment if an employer fires someone for their political opinions or if someone is shunned by their neighbors for their beliefs. Nevertheless, if these practices become widespread, then we will be less likely to hear unorthodox ideas and more likely to see a decline in political engagement as people self-censor…
Fortunately, we can take action to limit the threat our culture poses to political expression. If citizens face calls to be fired for a political donation or everyday Americans fear speaking out about politics, then perhaps we should rethink the laws that expose Americans’ identities, home addresses, and employers just for supporting a candidate or party.
By Jonathan Turley
[New York Attorney General Letitia] James is not disregarding the implications of a Democratic official seeking to destroy one of the most powerful conservative groups in the country in an election year. By contrast, she seems to revel in that image. She knows liberals are thrilled by the idea of disbanding the NRA…
Those same political supporters, of course, would be justifiably outraged by any clear action of the administration to dissolve liberal organizations such as Planned Parenthood…
Trying to dissolve an organization engaged in political speech should not occur absent overwhelming proof that it is a criminal enterprise, which is why this has never happened with a group like the NRA. James may point to the voluntary dissolution of the Donald Trump Foundation, a small and mostly inactive nonprofit, or the dissolution of Ku Klux Klan groups in the 1940s, but there is little comparison with the NRA in these cases.
Many liberals celebrating the lawsuit against the NRA condemned Trump for trying to declare the radical movement antifa a terrorist organization. They were as right then as they are wrong now. I recently testified for the Senate to oppose such a designation for antifa. While I have been a vocal critic of antifa and its tactics, it is a dangerous power for the government to openly wield against organizations engaged in political speech.
Wall Street Journal: ‘Somebody Needs to Go to Jail for This’
By James Freeman
On Sunday Sen. Lindsey Graham (R., S.C.) presented new evidence suggesting that in 2018 the FBI lied to the Senate Intelligence Committee about the bureau’s investigation of the 2016 Trump campaign. Specifically, the FBI appears to have made a series of claims directly contradicting information in its possession about the key source for the dossier of anti-Trump rumors compiled by ex-British spy Christopher Steele.
Appearing on Maria Bartiromo’s “Sunday Morning Futures” program on Fox News, Sen. Graham said that highly misleading information was given to senators after the FBI had misled the Foreign Intelligence Surveillance Act court in obtaining a warrant to surveil a Trump campaign associate and long after the FBI had learned its alleged evidence of collusion with Russia was garbage.
“Somebody needs to go to jail for this. This is a second lie. This is a second crime. They lied to the FISA court,” said Graham, who adds that the FBI was then “lying to the Senate Intel Committee.”
Right to Protest
The Atlantic: The Whole Concept of ‘Unlawful Assembly’ Is a Mess
By Garrett Epps
[T]extually, the words unlawful assembly embody a tension, even a contradiction-because the First Amendment, in its very terms, protects “the right of the people peaceably to assemble.” So “unlawful assembly” is like “illegal writing” or “forbidden religious exercise”: There surely may be such a thing, but, in each case, the burden has to be on the authorities to explain why this assembly, this writing, this religious exercise is an exception to the broad protection afforded to these important political rights…
Some scholars have argued recently that Americans have lost sight of “peaceable assembly” as an important constitutional right. One of them is Tabatha Abu El-Haj, a professor at the Drexel University Thomas R. Kline School of Law, whom I spoke with last week. Abu El-Haj has written extensively about the First Amendment and the right to assemble in particular, including a 2009 article called “The Neglected Right of Assembly.” …
Abu El-Haj said that contemporary First Amendment doctrine has concentrated on freedom of speech, treating the right of groups to assemble as merely a subset of the right of individuals to speak. That’s not in accordance with the words of the Constitution, she pointed out. “Courts should take a textual approach and thus disaggregate peaceable assembly from freedom of speech,” she said.
Press-Enterprise: There’s nothing new about federal meddling in protest movements
By Brian Bensimon
The targeting of protesters based on ideological grounds hearkens back to a darker era in history where it was common for the FBI to disrupt and discredit various activist movements through measures of state repression. Under a young agent J. Edgar Hoover, the FBI routinely cracked down on dissidents in a number of infamous episodes, including the Palmer Raids, where citizens were rounded up without due process on the basis of their political speech. Similarly, in the 1920s and 30s, Italian and Eastern European immigrants were accused of being “Bolshevists” and “leftists,” with nearly 10,000 citizens arrested, thousands forced into detention, and hundreds forcibly removed…
One only has to look at the case of Rakem Balogun, the operator of Guerilla Mainframe, a Black self-defense organization, to understand the dangerous trajectory the FBI has been heading in the last few years. Despite no federal convictions on his record, the FBI used Balogun’s social media postings and an Infowars video of him protesting at a 2015 rally, to establish his designation as the first (public) “Black Identity Extremist.” While the FBI eventually dropped all charges against Balogun, the mere fact that such an investigation occurred is likely to produce a chilling effect on free speech, especially among Black and minority activists.
By Alex Thompson
In the 2016 campaign, Hillary Clinton’s campaign paid for the opposition research book on Donald Trump compiled by the liberal Super PAC American Bridge.
In 2020, American Bridge is putting it online for free.
The group on Friday published 1,043 pages of its research document on Trump on a new website that was used internally before. It wants the material in public view not so much for voters, but for other Democratic groups to use to campaign against the president…
Opposition research files used to be closely held by party operatives. But American Bridge is joining a growing number of outside political groups uploading their documents online so that campaigns can access them without breaking campaign finance rules…
Election laws prevent coordination between independent expenditure groups and campaigns. So campaigns and outside groups have been devising methods to get around those rules: posting b-roll of candidates for use in super PAC ads or posting ad scripts online for other outside groups to see. Uploading the documents online is the latest method to pass on help without technically coordinating.
Online Speech Platforms
RealClearPolitics: Social Media Imposing Modern-Day Hays Code on Political Speech
By Kalev Leetaru
In many ways, social media platforms have become modern-day incarnations of the Hays Code that governed Hollywood from the 1930s to 1960s, establishing “morality” standards and enforcing them with an army of censors. By shaping popular culture through its control of movies, the Hays Code ensured that generations of Americans were presented an idealized world of benevolent public institutions, including police and politicians whose good works were spotlighted and any wrongdoing was punished. Moreover, as an extrajudicial speech regulation, studios could modify the rules and exempt content at will, much as social platforms do today.
The Hays Code’s influence came from the fact that the studio system was largely centralized, meaning a small number of companies largely controlled what audiences saw. While niche independent studios could set their own rules, the dominance of the major studios ensured the code had an outsized effect over entertainment speech, the same as Twitter and Facebook’s rules are far more influential than those of upstarts like Parler.
Nearly a century later, lawmakers are once again awakening to the power of centralized speech controls by turning to social media companies to impose constraints traditionally prohibited under the First Amendment.
Candidates and Campaigns
New York Times: Big Tech Makes Inroads With the Biden Campaign
By David McCabe and Kenneth P. Vogel
Joseph R. Biden Jr. has been critical of Big Tech, admonishing Facebook for mishandling misinformation and saying internet companies should lose a central legal protection.
But his campaign has quietly welcomed onto its staff and policy groups people who have worked with or for Silicon Valley giants, raising concerns among the industry’s critics that the companies are seeking to co-opt a potential Biden administration…
[The Biden campaign] stressed that members of its policy committees were not there to represent their employers or clients, and that lobbyists – except those who represent labor unions – were barred from participating.
After The Times asked members of the tech policy volunteer group about their work, some of them received a message “to remind everyone that the work we are doing here is for the purpose of developing policy positions that are sound and in the best interest of the candidate and his election as president.”
The message noted that there were “a variety of rumors floating around” about how “the campaign is managing conflicts of interest and lobbying by corporate and other interests.” And it acknowledged that while “it is sometimes hard to separate one’s personal views from those of one’s employer or clients,” members should do their “absolute best to ensure that the ideas that you offer up and the contributions that you make are consistent with what is best for the candidate and not what is best for you or your clients or your employer.”
Bloomberg Government: Defeated Senators Target Former Colleagues With Leftover Cash
By Kenneth P. Doyle
Heidi Heitkamp and Joe Donnelly are tapping their leftover campaign funds to help flip Republican Senate seats.
The former Democratic senators from North Dakota and Indiana founded a super PAC called One Country Fund, which is supporting candidates who will stand up for rural areas.
The political action committee launched its opening salvo over the weekend in Iowa, where it plans to spend $1 million to air for three weeks a TV and radio ad that criticizes Sen. Joni Ernst (R) for backing President Donald Trump rather than looking out for the state…
The only reported funding for One Country Fund so far is a $500,000 contribution from Heitkamp’s Senate campaign committee…
The super PAC also is set to receive money from Donnelly, who had about $210,000 in leftover cash at the end of June. He was also unseated in 2018…
Use of leftover campaign funds is restricted by FEC rules, and tapping this money for campaign ads has rarely been done before. The commission approved an advisory opinion request in 2012 allowing a former candidate to contribute leftover money to a super PAC, but the request made a point of saying the candidate wouldn’t control how the money was spent.
Last year, the FEC deadlocked over an advisory request from former congressman and HHS Secretary Tom Price, a Georgia Republican, asking to shift $1.7 million in leftover campaign cash to a nonprofit intended to promote his policy ideas on health care.
The Atlantic: The Facts Just Aren’t Getting Through
By Anne Applebaum
[People in information bubbles] read and hear completely different media, respect different authorities, and search for a different sort of news…
[H]ow is it possible to reach people who can’t hear you? This is not merely a question of how to convince people, how to use a better argument, or how to change minds. This is a question about how to get people to listen at all. Just shouting about “facts” will get you nowhere with those who no longer trust the sources that produce them…
Inside the noisy and chaotic modern information sphere, the message doesn’t matter nearly as much as the messenger. Many people no longer trust major media outlets to give them valuable information-and they may never do so again. They no longer trust politicians or groups they perceive to be outside their tribe either-and the days when a president got a respectful audience just for being the president may never return again…
One way or another, all successful campaigns-political campaigns, activist campaigns, even commercial advertising campaigns-need to reckon with the fact that audiences live in different information spheres. The era of mass media and unitary campaign slogans is drawing to an end. This is not news: The Russian operatives who intervened in the 2016 election were telling members of Black Lives Matter Facebook groups different things from what they told the anti-immigration activists they targeted in Idaho…
Targeted advertising makes it much easier to splice and dice the electorate, and it isn’t hard to create misunderstandings between groups who no longer speak to each other.
By Mark Naymik
Cleveland City Council should investigate whether special interest groups critical of Cleveland Public Power have ties to the passage of last year’s controversial House Bill 6, the nuclear bailout law sought by FirstEnergy, Council President Kevin Kelley said Monday…
During council’s finance committee on Monday afternoon, Kelley complained that two groups active in the city – Consumers Against Deceptive Fees and Clevelanders First – have one thing in common: Attacking the city-owned utility…
“All I want to know is how is this operation being funded,” Kelley said during the meeting, referring to Consumers Against Deceptive Fees. “Is it morally repugnant but legal dark money or is there something more to it.” …
Kelley also cited work by Clevelanders First, the group behind an effort last year to cut the pay and size of city council…
The resolution [passed by Council’s finance committee on Monday] reads in part: “Council has reason to believe that Company A has other long-term public policy goals specific to the City of Cleveland: to restrict or destroy Cleveland Public Power and to influence or control the City’s legislative body as well as its executive branch. The tactics used in the racketeering conspiracy to enact HB 6 are similar to those used by Company A and its allies against the City of Cleveland: applying political pressure using phony citizen groups and paying out significant dollars to fund its objectives.” …
On Wednesday, the full council will consider a vote on the resolution.