New from the Institute for Free Speech
By Mark D’Ostilio
Under FEC rules, presidential candidates are largely free to shift money from their past campaigns for federal office into their current presidential campaign accounts. This has been a major asset to candidates like Senators Gillibrand, Sanders, and Warren, who have each made large transfers from their old Senate accounts to their presidential campaigns. Entering an expensive race for the highest office in the nation is a daunting task; however, thanks to this FEC rule, some candidates can get a jump start and spread their message with money they had previously raised.
As the Institute for Free Speech has noted in the past, having access to an ample supply of money allows candidates to educate voters on their plans for the country. It also allows challengers to run more competitive campaigns against better-known incumbents. Research has shown that campaign spending creates a more engaged and better-educated electorate, allowing voters to select the representatives who they feel are truly the best fit for the job. Money cannot “buy” an election, so transfers from Senate to presidential campaign accounts generally improve races by giving candidates more resources to speak.
However, the freedom enjoyed by candidates who have leftover funds stands in stark contrast to the strict limits facing political newcomers and candidates with backgrounds in state politics. As federal officeholders are free to transfer millions from old accounts to their presidential campaigns, candidates who have no experience in federal elections must start from zero and build their support in contributions of no more than $2,800 per election…
To ensure that elections are fair for everyone, contribution limits should be eliminated so that state and local candidates can better compete with their counterparts who already hold elected office at the federal level.
By Merrit Kennedy
A federal appeals court ruled Tuesday that a lower court was wrong to dismiss former Alaska Gov. Sarah Palin’s defamation lawsuit against The New York Times over an editorial linking her to a 2011 mass shooting.
A three-judge panel of the 2nd U.S. Circuit Court of Appeals sent the case back to a lower court, saying her case against the newspaper “plausibly states a claim for defamation and may proceed to full discovery.”
Times spokesperson Danielle Rhoades Ha tells NPR that “we are disappointed in the decision and intend to continue to defend the action vigorously.” …
“This case is ultimately about the First Amendment, but the subject matter implicated in this appeal is far less dramatic: rules of procedure and pleading standards,” the judges wrote.
They said the lower court used an “unusual” procedure to assess the validity of arguments put forth by Palin’s legal team. It held a special hearing and then used facts from that hearing to dismiss the case. That was a mistake, the appeals court said.
Even beyond the procedural irregularity, the opinion said, Palin’s case against the Times “states a plausible claim for relief.”
The appellate court judges stressed that the burden on Palin’s legal team to actually prove her claim is high – it must prove with “clear and convincing evidence” that the author of the editorial “acted with actual malice.”
By Ariane de Vogue
President Donald Trump sued California Tuesday challenging a state law that requires candidates for president to disclose income tax returns before they can appear on the state’s primary ballot.
The federal lawsuit from Trump and his campaign is the latest move by the President to resist efforts to turn over his tax returns.
The law adds an “unconstitutional qualification” to the fixed set of qualifications for the presidency set forward in the Constitution and violates the First Amendment, Trump’s lawyer William Consovoy argued in the lawsuit filed in the US District Court for the Eastern District of California…
A second similar lawsuit was also filed Tuesday by Republican voters along with the Republican National Committee and the Republican Party of California who argue that this a political maneuver that takes voting rights away from Trump’s supporters…
Legal expert Rick Hasen of the University of California, Irvine, said the state law is of “uncertain constitutionality.”
“It is unclear whether state legislative power contained in Article II of the (US) Constitution gives California the power to take this step,” he said adding that the law might infringe upon the rights of political parties to select nominees of their choice.
“If such a law is upheld as constitutional, we might see a race to the bottom whereby other states enact ballot access requirements, such as a requirement for candidates to produce a birth certificate, which could affect which candidates can run in which states,” he added.
Bloomberg Law: Louisiana Mandatory Bar Dues Violate Free Speech, Suit Says
By Jacklyn Wille
Louisiana’s requirement that licensed attorneys join and pay dues to the state’s bar association is an unconstitutional violation of free speech rights, a new lawsuit claims.
The Aug. 1 lawsuit, filed against the Louisiana State Bar Association and the state’s Supreme Court, claims the LSBA uses the mandatory dues it collects to engage in political and ideological speech, including the advocacy of particular public policies.
The collection of mandatory dues to “subsidize political and ideological speech without attorneys’ affirmative consent violates their First Amendment right to choose what private speech they will and will not support and is not necessary to regulate the legal profession or improve the quality of legal services in Louisiana,” the lawsuit filed in the Eastern District of Louisiana argues.
The plaintiff, Louisiana lawyer Randy Boudreaux, is backed by the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute, a libertarian think tank. The center recently filed a similar challenge in Oklahoma, and in 2018 it convinced the U.S. Supreme Court to revive its case targeting mandatory bar dues in North Dakota.
Boudreaux’s lawsuit cites the Supreme Court’s 2018 ruling in Janus v. AFSCME, which curbed public sector unions’ power to collect dues from nonmembers.
By Rachel Alexander
Powerful conservatives associated with nonprofits nationwide were so alarmed by what happened to Stockman that 27 of them filed an amicus curiae brief in his appeal. After seeing the prosecution’s response, they have also submitted to the court a reply brief and requested that the court accept it. They called out the prosecution for falsely claiming that Stockman illegally coordinated communications between a nonprofit and his campaign. The prosecution relied upon a court opinion that prohibits “electioneering communications” within 30 to 60 days of an election. But electioneering communications are defined as broadcast TV ads, not the printed voter education materials at issue in Stockman’s case. As long as the voter education mailer sent out in the election in which Stockman was running did not include “express advocacy” words, like “vote for” or “support,” it didn’t violate campaign finance law as established by numerous legal precedents.
The amicus curiae also challenged a motion by the prosecution, which the court had granted, prohibiting Stockman from mentioning Lois Lerner at trial. If Stockman had been able to show the IRS’s “scandalous, unlawful targeting of outspoken, politically active conservatives like him — that could have provided the reasonable doubt for the jury to acquit.”
The amicus curiae’s reply characterizes this as a case where “the Government misused innocent acts of Appellant and his colleagues to spin fantastical tales of guilt that confused and misled the jury.” If allowed to stand, this sets a terrifying precedent, that the courts will not uphold Americans’ First Amendment right to criticize public officials. It also puts nonprofits in grave danger of malicious prosecution – if the prosecution gets to define what constitutes legally permissible activities by a nonprofit, they could sink anyone by claiming a higher standard than required by law.
The Ledger: UF, finally, shows it values free speech
By Editorial Board
Last December the UF chapter of Young Americans for Freedom, a conservative group, sued the university, asserting its free speech rights had been violated.
At the time of the lawsuit UF collected from all its students a mandatory $19 per credit hour fee that funds a variety of events for student organizations. The money was split between groups defined as “budgeted” and “nonbudgeted,” and the university empowered the Student Government organization with control of the purse strings as well as veto power over certain activities. According to Alliance Defending Freedom, the nonprofit group that represented YAF, 48 budgeted student organizations could access a collective pot that exceeded $1 million, with many receiving automatic stipends. On the other hand, another 859 student groups had just $50,000 to divvy up.
YAF was a nonbudgeted group, and Student Government had denied its request to join the ranks of the budgeted. But YAF did receive a special exemption to obtain funding for a speaker. After YAF brought conservative author Dinesh D’Souza to campus in April 2018, Student Government changed its policy to bar nonbudgeted groups from receiving funding for outside speakers.
YAF had sought $6,225 to bring NRA spokeswoman Dana Loesch and conservative author and screenwriter Andrew Klavan to Gainesville. But the group’s request was denied under the revised policy. YAF subsequently challenged the policy, maintaining its members were being forced to pay into a system that funded appearances by progressive speakers who oppose their ideals, while blocking them from inviting speakers of their choosing.
Last week, YAF dropped its legal action after UF agreed to change the policy so event funding is disbursed in a “viewpoint-neutral” manner, and pay YAF $66,000 in legal and other costs.
Lexington Herald-Leader: Feds can argue father of Grimes broke campaign laws in her state races, judge says
By Bill Estep
Prosecutors can present evidence that former state Democratic Party chief Jerry Lundergan made alleged illegal contributions to the campaigns of his daughter, Secretary of State Alison Lundergan Grimes, in 2011 and 2015 as they try to prove he broke federal law in her 2014 U.S. Senate campaign, a federal judge has ruled.
Lundergan has not been charged in connection with Grimes’s successful state races.
However, he is scheduled to go on trial this week for allegedly making illegal contributions through his companies to Grimes in her unsuccessful 2014 bid to unseat Kentucky’s senior Republican U.S. senator, Majority Leader Mitch McConnell.
Prosecutors argued that evidence Lundergan made illegal contributions to Grimes in the two state races is relevant to “establish that he knew and intended to use these same methods to contribute corporate money” to Grimes in 2014.
Lundergan is charged with Dale Emmons, a prominent Kentucky political consultant, with conspiring to make illegal contributions to Grimes in her 2014 race.
Lundergan is charged with directing campaign consultants and vendors to send bills to one of his companies for work they did on Grimes’ federal campaign.
Emmons is charged with consulting for the campaign but billing one of Lundergan’s companies for the work.
The two also allegedly caused Grimes’ campaign to file false reports. They have denied the charges.
Daily Caller: Joaquin Castro Posts Names, Employers Of Trump Donors
By Peter Hasson
Democratic Texas Rep. Joaquin Castro on Monday tweeted the names and employers of 44 San Antonio residents who donated the federal maximum to President Donald Trump’s reelection campaign.
Castro, whose district includes much of San Antonio, claimed the donors “are fueling a campaign of hate that labels Hispanic immigrants as ‘invaders.'” Castro is the twin brother of Democratic presidential candidate Julian Castro and chairs his presidential campaign.
“Sad to see so many San Antonians as 2019 maximum donors to Donald Trump,” the congressman wrote, proceeding to name local businesses whose owners gave the maximum to Trump’s campaign. Eleven of the 44 donors shown in Rep. Castro’s post listed their employment as “retired.”
Trump campaign communications director Tim Murtaugh is demanding Castro delete the post.
“Democrats want to talk about inciting violence? This naming of private citizens and their employers is reckless and irresponsible. He is endangering the safety of people he is supposed to be representing,” Murtaugh told the Daily Caller News Foundation.
“No one should be targeted for exercising their First Amendment rights or for their political beliefs. He should delete the tweet, apologize, and his brother’s campaign should disavow it,” Murtaugh added.
By Theodoric Meyer
“Politically, it makes sense,” said Michael Gerhardt, a University of North Carolina law professor who’s an authority on constitutional law. “Constitutionally, it may be a problem.”
The First Amendment protects the right “to petition the Government for a redress of grievances” – essentially, the right to lobby – and law professors said a lifetime lobbying ban might not survive a legal challenge given the Supreme Court’s libertarian leanings on the First Amendment under Chief Justice John Roberts. “I would say a lifetime ban would raise extremely serious constitutional questions,” said Richard Pildes, a constitutional law professor at New York University, while acknowledging courts had upheld narrower revolving-door restrictions in the past. “If I had to bet, I would say they would strike it down, but I’m not positive about that,” said Josh Chafetz, a Cornell University law professor.
Part of the uncertainty stems from the lack of relevant precedent for the Supreme Court to lean on. “There’s not that much case law that’s directly on the point. You have to look pretty far,” said Joseph Fishkin, a law professor at the University of Texas at Austin. Though it would almost certainly face a First Amendment court challenge, “it’s not obviously unconstitutional,” said Amanda Shanor, a University of Pennsylvania professor who studies the First Amendment.
Several professors suggested ways to craft a bill to minimize constitutional concerns. “You could imagine exceptions built in to allow, for example, someone to petition on their own behalf rather than to act as a paid lobbyist,” said Richard Hasen, a University of California, Irvine law professor. Others suggested lessening the length of the ban or limiting it to issues lawmakers had worked on directly. (Senators are currently barred from lobbying Congress for two years; representatives are barred for a year.)
By Elie Mystal
A North Carolina gun store, Cherokee Guns, erected a billboard that featured Congresswomen Ilhan Omar, Alexandria Ocasio-Cortez, Rashida Tlaib, and Ayanna Pressley…
The billboard sparked outrage. Some even called it an incitement to violence that is unprotected speech under the First Amendment.
I like that argument, but it’s wrong. The law, as it stands now, clearly protects this kind of advertising. But, to me, the more interesting question is “should it?” To ask this question, I went to First Amendment expert Ken White. White is a partner at Brown, White & Osborne, he runs the popular Popehat blog and associated Twitter feed, and is the guy to talk to when you want to be talked out of taking the First Amendment and setting it on fire.
Our conversation about the billboard and attendant First Amendment issues is below, edited for space and to make ourselves sound like we were in the same room: …
Online Speech Platforms
New York Times: Legal Shield for Websites Rattles Under Onslaught of Hate Speech
By Daisuke Wakabayashi
Last month, Senator Ted Cruz, Republican of Texas, said in a hearing about Google and censorship that the law was “a subsidy, a perk” for big tech that may need to be reconsidered. In an April interview, Speaker Nancy Pelosi of California called Section 230 a “gift” to tech companies “that could be removed.” …
Since it became law, the courts have repeatedly sided with internet companies, invoking a broad interpretation of immunity.
On Wednesday, the United States Court of Appeals for the Second Circuit affirmed a lower court’s ruling that Facebook was not liable for violent attacks coordinated and encouraged by Facebook accounts linked to Hamas, the militant Islamist group. In the majority opinion, the court said Section 230 “should be construed broadly in favor of immunity.” …
The criticisms of Section 230 vary. While both Republicans and Democrats are threatening to make changes, they disagree on why.
Some Republicans have argued that tech companies should no longer enjoy the protections because they have censored conservatives and thereby violated the spirit of the law…
On the flip side, some Democrats have argued that small and large internet sites aren’t serious about taking down problematic content or tackling harassment because they are shielded by Section 230…
While there is growing political will to do something about Section 230, finding a middle ground on potential changes is a challenge.
“When I got here just a few months ago, everybody said 230 was totally off the table, but now there are folks coming forward saying this isn’t working the way it was supposed to work,” said [Senator Josh Hawley], who took office in January.
By Robert Epstein
Different tech companies pose different kinds of threats. I’m focused here on Google, which I’ve been studying for more than six years through both experimental research and monitoring projects. (Google is well aware of my work and not entirely happy with me. The company did not respond to requests for comment.) Google is especially worrisome because it has maintained an unopposed monopoly on search worldwide for nearly a decade. It controls 92 percent of search, with the next largest competitor, Microsoft’s Bing, drawing only 2.5%.
Fortunately, there is a simple way to end the company’s monopoly without breaking up its search engine, and that is to turn its “index”-the mammoth and ever-growing database it maintains of internet content-into a kind of public commons.
There is precedent for this both in law and in Google’s business practices. When private ownership of essential resources and services-water, electricity, telecommunications, and so on-no longer serves the public interest, governments often step in to control them. One particular government intervention is especially relevant to the Big Tech dilemma: the 1956 consent decree in the U.S. in which AT&T agreed to share all its patents with other companies free of charge. As tech investor Roger McNamee and others have pointed out, that sharing reverberated around the world, leading to a significant increase in technological competition and innovation.
Doesn’t Google already share its index with everyone in the world? Yes, but only for single searches. I’m talking about requiring Google to share its entire index with outside entities-businesses, nonprofit organizations, even individuals-through what programmers call an application programming interface, or API.
Arizona Daily Star: ‘Dark money’ expansion remains on hold while court decides future of law
By Howard Fischer, Capitol Media Services
In a new ruling, Maricopa County Superior Court Judge David Palmer rejected claims by attorney Tim Berg, representing the state, that it would be too confusing for organizations that the Legislature exempted from campaign finance laws in 2017 to now have to obey those laws for the 2020 election. Berg said the changes should remain in place while he asks the Court of Appeals to review Palmer’s original findings declaring the law void and unenforceable.
Palmer instead sided with attorney Jim Barton, representing the Arizona Advocacy Network that challenged the 2017 law. He told Palmer it would be wrong to run the 2020 election under a law that, at least according to the judge, is unconstitutional.
“Without the usefulness of the act in place, certain entities will have carte blanche to illicitly influence elections,” Barton argued.
And attorney Mary O’Grady, representing the Citizens Clean Elections Commission – the agency whose powers the 2017 law sought to curtail – said allowing the state to run the 2020 elections under the law that Palmer voided would deprive voters of information “about entities spending money to influence Arizona elections.” …
The 2017 law, known as SB 1516, was championed by then-House Speaker J.D. Mesnard, R-Chandler. He said that existing laws interfered with the rights of free speech and people to participate in the political process with their dollars without giving up their right of privacy.