New from the Institute for Free Speech
Institute for Free Speech Welcomes Inaugural First Amendment Fellow, Mallory Rechtenbach
Mallory Rechtenbach has joined the Institute for Free Speech for a one-year term as our inaugural First Amendment Fellow. In this position, she will support the Institute’s legal team in litigation, writing amici curiae briefs, and conducting legal research. As Mallory explains, “Freedom of political speech is at the core of our Republic. It is not a privilege, nor a mere right. Rather, it is the is the foundational right which secures all other rights. The First Amendment provides a check on governmental power and serves as a conduit for self-government through the discovery of truth, which is why IFS’s work is so imperative. I am honored to have the opportunity to work with the Institute. This position is truly the culmination of a lifelong passion for freedom of expression in all its forms.”
Mallory holds a B.A., magna cum laude, in Political Science from the University of Nebraska Omaha and recently graduated with highest distinction from the University of Nebraska College of Law, earning a J.D. with a concentration in Constitutional Law. During law school, Mallory served as Articles Editor for the Nebraska Law Review and was honored as a Blackstone Fellow and the Theodore C. Sorenson Fellow.
Mallory also completed an externship with Chief Judge John M. Gerrard of the United States District Court for the District of Nebraska, assisted Professor Richard F. Duncan on First Amendment research, and worked as the teaching assistant to Professor Chelsi Hayden.
We look forward to Mallory’s contributions to our litigation efforts in the coming year. Please join us in welcoming her to our growing team!
Amicus Brief on Remand of Taxpayers Association of Oregon and Taxpayers Association of Oregon PAC
The Oregon Supreme Court remanded for determination whether the candidate campaign contribution limits at Multnomah County Code (“MCC”) § 5.201 (“the Measure”) are unconstitutional under the First Amendment. The Measure restricts speech in an area where “the First Amendment has its fullest and most urgent application,” Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989) (internal quotation marks omitted) (collecting cases), and it violates the First Amendment in two ways: by limiting the contributions that candidates may make to their own campaigns and by imposing unconstitutionally low general limits that are not justified by a sufficient governmental interest.
Congress
TPM: The GOP Remains Loyal To Corporations And Lobbying Groups Over Americans. COVID Hasn’t Changed That.
By Adam Eichen
[B]uried in a portion of the legislation introduced by Sens. Marco Rubio (R-FL) and Susan Collins (R-ME) is another major poison pill that should make Americans across the country even angrier: a bailout for lobbying groups.
The “Continuing Small Business Recovery and Paycheck Protection Program Act” would extend eligibility for the Payment Protection Program – the forgivable loan program for small businesses created by Congress in a previous COVID-19 relief bill – to 501(c)(6) trade associations with 300 or fewer employees. The Democratic Policy Center, an organization I co-founded, determined that 99.8 percent of 501(c)(6) organizations meet that threshold…
The Collins-Rubio legislation does limit PPP eligibility to groups that spend less than 10 percent of their activities on lobbying, which would prevent some otherwise-qualifying lobbying groups from collecting federal money. However, the American Society for Association Executives – a lobbying group for lobbying groups – is pushing hard to remove this provision. And there is reason to believe they could be successful…
(Interestingly, Rubio has authored an amendment to the bill that would further limit which groups could qualify. It would lower the employee threshold to 150 or fewer and expand the definition of lobbying activities to be significantly more encompassing. That said, it is unclear whether this amendment has actually been filed, or, if not, whether the senator intends to do so. Rubio’s office did not respond to TPM’s requests for comment.)
Right to Protest
Reason (Volokh Conspiracy): Lawsuit Against Pro-Palestinian / Anti-Semitic Protesters Outside Synagogue Thrown Out
By Eugene Volokh
From today’s decision by Judge Victoria A. Roberts in Gerber v. Herskovitz (E.D. Mich.), in a case I blogged about in March:
Marvin Gerber and Dr. Miriam Brysk (“Plaintiffs”) allege a group of protestors infringes on their federal and state rights by regularly protesting in front of a Jewish synagogue where Plaintiffs attend religious services. Plaintiffs also allege the City of Ann Arbor … and several of its employees contribute to this infringement by failing to enforce the Ann Arbor City Code ….
There are two groups of Defendants: (1) the protestors; and (2) the City and several of its employees (collectively “Defendants”)….
Every Saturday since September 2003, Defendant Henry Herskovitz leads a group of protestors. They typically place 18-20 signs, posters, and placards on the grass section adjacent to the sidewalk in front of the Synagogue, as well as on the grass section across the street, facing the Synagogue. They also lean them against trees and portable chairs that the protestors bring with them. The protestors also carry signs in their hands or attach them to twine hanging from their necks. The signs display statements such as “Resist Jewish Power,” “Jewish Power Corrupts,” “Fake News: Israel Is A Democracy,” “Stop Funding Israel,” and “End the Palestinian Holocaust.”
Bloomberg Law: Facial Recognition Is a Threat to People of Color
By Travis LeBlanc
While some of the largest tech players have suspended the sale of facial recognition tools due to concerns over racial bias, the Department of Homeland Security is moving forward with using it at airports and, apparently, to monitor Black Lives Matter protests.
As a member of the U.S. Privacy and Civil Liberties Oversight Board, I am conducting an oversight investigation into the DHS’s use of biometric technologies like facial recognition that pose substantial privacy and civil liberties risks, and likely will also disproportionately target people of color…
Along with many Americans, I have deep concerns about its use, whether to counter terrorism in airports or monitor protected First Amendment gatherings.
Independent Groups
Center for Responsive Politics: Party operatives steering millions in ‘dark money’ to 2020 election ads
By Anna Massoglia
More than $116 million in political spending and 2020 contributions can be traced back to “dark money” groups aligned with Democratic or Republican party leadership.
These political party-aligned dark money groups have largely skirted the Federal Election Commission’s disclosure rules by pouring millions of dollars into digital advertising, TV ads framed as issue advocacy and funneling money through closely tied super PACs effectively operating as “shadow parties” with close ties to political party leadership on both sides of the aisle.
Online Speech Platforms
Washington Post: Misinformation about the coronavirus is thwarting Facebook’s best efforts to catch it
By Elizabeth Dwoskin
As the coronavirus pandemic has raged across the United States, misinformation about vaccines and other health topics has been viewed an estimated 3.8 billion times on Facebook – four times more than authoritative content from institutions such as the World Health Organization and the Centers for Disease Control and Prevention, according to a study by the left-leaning global human rights group Avaaz…
In addition, the group found, articles that had been identified as misleading by Facebook’s own network of independent third-party fact-checkers were inconsistently labeled, with the vast majority, 84 percent, of the posts in Avaaz’s sample not including a warning label from fact-checkers.
The report, which interpreted data from Facebook’s own reported metrics, adds fuel to critics’ arguments that major technology companies cannot control the spread of harmful misinformation on their platforms, and in many cases amplify it.
Multichannel News: Survey: Majority Think Big Tech Censors Political Speech
By John Eggerton
[M]ost Americans said social media sites intentionally censor political viewpoints they decide are objectionable.
That is according to a new survey released Wednesday (Aug. 19) by Pew Research Center, appropriately titled “Most Americans Think Social Media Sites Censor Political Viewpoints.” …
The Pew survey found that 73% of respondents said it is very (37%) or somewhat likely (36%) that the sites are censoring political viewpoints, while only 25% said it is not likely.
A vast majority of Republicans said that is the case, but a majority of Democrats (59%) also agree.
Respondents were pretty much split on whether social media sites should flag posts as misleading or inaccurate, with 51% saying they at least somewhat approve, while 46% said they at least somewhat disapprove.
But 66% said they do not have too much or no confidence that social media sites are able to correctly determine what content to flag.
Techdirt: Why Keep Section 230? Because People Need To Be Able To Complain About The Police
By Cathy Gellis
The storm has passed and the charges have been dropped. But the fact that someone who tweeted about police behavior, and, worse, people who retweeted that tweet, were ever charged over it is an outrage, and to make sure that it never happens again, we need to talk about it. Because it stands as a cautionary tale about why First Amendment protections are so important – and, as we’ll explain here, why Section 230 is as well.
CNBC: Facebook’s Sheryl Sandberg says if a Trump post violates standards, ‘it comes down’
By Salvador Rodriguez
Facebook COO Sheryl Sandberg on Tuesday said the company is prepared to remove any posts by President Donald Trump that violate the company’s standards.
“When the president violates our hate speech standards or gives false information about voter suppression or coronavirus, it comes down,” Sandberg said on MSNBC’s Andrea Mitchell Reports.
Candidates and Campaigns
Roll Call: Democrats push to revamp political money system that’s boosting their campaigns
By Kate Ackley
Democrats officially adopted a platform at their convention this week that calls for a sweeping overhaul of campaign finance laws, including forcing the disclosure of covert sources of political spending – money that right now is helping to boost the party’s candidates for the House, Senate and White House.
Big donors, super PACs and nonprofit organizations that may shield their donors’ identities are going all in for the 2020 campaigns, funding ads and other efforts for candidates in both parties.
Yet if Democrats hold the House and win control of the Senate and White House, activists say they plan to step up the pressure on the party to revamp the nation’s political-money system, even though it would be that system that helped put them in charge. That still will be no simple task: Getting such legislation through the Senate would almost certainly require an elimination of the filibuster, since Democrats are unlikely to hold the 60 seats necessary.
“We think we’re on the verge of a historic opportunity to enact unprecedented democracy reforms, including small-donor public matching funds, depending on the outcome of the election,” said Fred Wertheimer, who runs the campaign finance overhaul group Democracy 21…
“Clearly there’s a disconnect between what the Democratic Party platform says and how the 2020 campaign is being run,” said Michael Beckel, research director at Issue One, a campaign finance overhaul group.
Politifact: Spanberger’s no-corporate-PAC pledge needs a 2.6% elaboration
By Warren Fiske
Rep. Abigail Spanberger sits in a yard with her parents during a TV ad…
“When I ran for Congress, I promised to refuse money from corporate PACs,” she says. “I’ve kept that promise.” …
The National Republican Campaign Committee says Spanberger is lying in her ad and accepting backdoor corporate contributions. So we fact-checked Spanberger’s claim that she’s spurned corporate PAC contributions, and found it needs elaboration.
According to her latest filings with the Federal Election Commission, Spanberger has raised $4.2 million in contributions since the start of 2019 through the end of June 2020. We found no money that came directly from corporations.
But the NRCC has a small point. While Spanberger refuses direct corporate donations, she accepts contributions from PACs that do take corporate contributions. In other words, she receives a small amount of corporate PAC money that has been filtered.
Fort Myers News-Press: Byron Donalds wins Republican primary election for U.S. Congressional District 19, will face Democrat Cindy Banyai
By Amy Bennett Williams
Despite last-minute fake news dirty trickery, Byron Donalds appears to have won the Republican nomination for the US District 19 Congressional race…
Unlike third- and fourth-place winners Casey Askar and Dr. William “Fig” Figlesthaler, neither Donalds nor Eagle funded their own races. Askar poured in $3 million of his own money and Figlesthaler spent $2.1 million on his campaign, amounting to 81 and 86 percent of their spending, respectively.
The States
Spotlight PA: Dark money mystery: Top Pa. lawmaker helped raise cash for nonprofit whose agenda is largely a secret
By Angela Couloumbis of Spotlight PA and Brad Bumsted and Sam Janesch of The Caucus
In early March, a little-known Pennsylvania nonprofit called the Growth and Opportunity Fund Inc. hosted a gathering of donors at a California golf resort…The main draw at the posh La Quinta club near Palm Springs that day: state Senate Majority Leader Jake Corman, a Republican from Centre County who is next in line to ascend to the chamber’s most powerful job later this year.
Unlike traditional campaign events, however, the money Corman helped the Growth and Opportunity Fund raise that day was dark money…
Federal law prohibits coordination between organizations such as the Growth and Opportunity Fund and political campaigns such as Corman’s. The fund’s La Quinta fundraiser in March overlapped with a separate golf fundraiser Corman was hosting in the same location for his own political campaign. Corman’s event was also promoted by the same fundraising consultant who organized the fund’s golf outing. The consultant was Jen Zaborney, Ray Zaborney’s wife and business partner.
The events exemplify the tangled nature of money in Pennsylvania politics, where operatives can move seamlessly and simultaneously between campaigns, dark money groups, and lobbying, capitalizing on a system with weak rules and little oversight.
