Tuesday, February 20, 2018

Three Upcoming Free Speech Cases at the Supreme Court

Today, The Heritage Foundation hosted a panel on three important, upcoming free speech cases at the Supreme Court.  Key points from the attorneys representing the challengers are below.  The entire presentation is fascinating and can be viewed here (starting at 14:50).

First, Jacob Huebert of the Liberty Justice Center discussed Janus v. AFSCME, a challenge to Illinois compulsory union dues for non-members, which will be heard February 26:
  • The key question in Janus is can the government force its employees to give money to a union just to keep their jobs?  Illinois is one of 22 states that allow unions to take dues from every worker even if he or she is not a member of the union.
  • Janus argues that these laws violate right to choose which political speech to support and which groups to associate with.
  • Janus lost in lower court because of Abood v. Detroit Board of Education, where Supreme Court skipped the First Amendment analysis and did not require a showing of compelling government interest.  The compulsory dues in Abood were justified by the government interest in labor peace to avoid free riders (non-members gaining from unions' collective bargaining efforts), but the Court decided that unions cannot make workers pay for electioneering activity because association for political purposes is at heart of the First Amendment.  Because of this, a two-tier dues structure exists for union members who do not wish to support the unions' electioneering.
  • Abood is wrong because: 1) public unions’ activity is essentially political – discussions with the government about pay, etc., and 2) the free-rider justification is false – not everyone benefits from the collective bargaining and it could even be a harm if a person would prefer to be judged on individual merits.  Janus objects to the spending and tax increases supported by the union.  This argument assumes that every worker only cares about his own narrow monetary self-interest.
  • The challengers are optimistic that the court is willing to overrule Abood because of the rulings in Harris v. Quinn and Friedrichs v. California Teachers Association and hope the Court will say clearly that when you take a government job, you do not have to check your First Amendment rights at the door.

Second, Todd Gaziano of the Pacific Legal Foundation discussed Minnesota Voters Alliance v. Mansky, a challenge of Minnesota's prohibition of political apparel at the polls, which will be heard February 28 (and which we have covered before):
  • The Minnesota law's “breathtaking scope” is the primary reason it is unconstitutional.
  • Poll worker instruction said the law prohibits wearing clothing promoting a group with recognizable political views such as the Tea Party or MoveOn.org.
  • Andy Cilek, MVA's President, was twice prevented from voting because he was wearing a Gadsden Flag t-shirt. The third time he was allowed to vote but poll workers said they were taking down his name to pass along to law enforcement and authorities for possible prosecution.
  • The state’s justification is preventing intimidation and confusion.
  • Supreme Court has upheld bans on active campaigning.  That is not at issue here.
  • If clothing is actually intimidating, that would already be prohibited by separate statutes.  Law was substantially overbroad vs. the dangerous speech it was trying to prevent.
  • The state is now trying to reinterpret the law, but statute on its face is broad, reaching anything political. 
  • Almost anything can be considered political – religious messages, military messages, etc.
  • The problem is in application - different poll workers will apply statue differently, resulting in viewpoint discrimination and selective application.
  • The state admitted during litigation that there were especially broad applications of the law – Minnesota Vikings shirt, AFL-CIO shirt, and Chamber of Commerce logo on a shirt – all were political.
  • The state claims it needs the law to promote peace at the polls and prevent silent intimidation.  Supreme Court found that unfounded fears of disruption are not a basis for a broad prohibition on speech (Vietnam armband case - Tinker v. Des Moines Independent Community School District).

Finally, Jordan Lorence of Alliance Defending Freedom discussed National Institute of Family and Life Advocates (NIFLA) v. Becerra, a challenge to California's compelled disclosure law for pro-life pregnancy centers, which will be heard March 20:
  • The law requires licensed pro-life facilities (which offer ultrasounds) to post a sign saying California has public programs providing free contraception and abortion for eligible women, compelling them to speak in a way they find unconscionable.  It requires unlicensed facilities (that offer assistance services) to post a sign saying it is unlicensed with no medical provider supervising its activities.
  • Law is written to apply to only those with an ideological objection to abortion by exempting non-OB/GYN medical providers and all who participate in the government's program to provide or refer women to an abortion.
  • The state could use all sorts of communication channels if it thinks that women are insufficiently informed about their options for an abortion, but the only one it does is requiring pro-life pregnancy centers to convey its message.
  • “Raw display of governmental coercion” to force pro-life pregnancy centers to promote abortion.
  • Viewpoint and content-based discriminatory, only required of pro-life pregnancy centers – regular doctors and OB/GYNs do not have to post signs.
  • State’s justification (without evidence) is that centers are tricking women into thinking that they are abortion clinics.
  • State also says it is commercial speech, but no commercial transaction is taking place – services for free offered on an ideological basis.
  • It maybe could be justified on a medical disclosure/informed consent basis, but that is not state’s position or action – trying to entice women into a surgical procedure, not warn about its potential harms.  
  • West Virginia v. Barnett – Supreme Court struck down compulsory pledge of allegiance law during World War II, famously saying: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."
  • The lower court said that the law was permissible because it regulated a profession, which is not a recognized category of exemption from the First Amendment.  The Ninth Circuit used its own lower standard of scrutiny instead of the strict scrutiny mandated by the Supreme Court in Town of Gilbert.

Jordan Lorence also summarized what the three cases have in common.  The common thread is that Founders understood human tendency to misuse governmental power of coercion to censor those opposing the prevailing orthodoxy or force people to support prevailing orthodoxy at the time, and they passed the First Amendment to prevent that.  MVA v. Mansky is about straight censorship, Janus is about compelled speech via funding, and NIFLA is about compelled speech.  

All of these cases will have serious implications for all Americans' rights not to be forced to speak or prevented from speaking by the government.  All three advocates were optimistic that the Supreme Court will rule in their clients' favor, strike down these laws, and protect free speech rights.

Saturday, February 17, 2018

Lee Goodman: Happy Warrior for the First Amendment on the FEC

Yesterday was Republican Commissioner Lee Goodman's last day on the Federal Election Commission.  RNLA Vice President for Election Education David Warrington described some of his accomplishments, fighting to protect First Amendment rights and the rule of law, on the FEC in The Hill:
The left often charges that the FEC is a “dysfunctional” agency. Goodman, however, refuted the “dysfunction” charge using the FEC’s own data, showing that the agency acted in a bipartisan fashion on 93 percent of all votes taken. Goodman exposed what the left really meant by “dysfunction” at the FEC — failing to agree with the Democrats. To the dismay of Democrats, Goodman and his fellow Republican commissioners refused to ignore existing law and change the rules governing Americans’ political speech. . . . 
Goodman was committed to keeping speech on the internet free of new regulation. Despite what you might read in the news, paid advertisements on the internet are subject to the full range of FEC regulations, just like newspaper or television ads. Since 2006, Internet activities posted for free — blog posts, Facebook posts, tweets, YouTube videos, etc. — have been exempt from FEC regulations. Yet the FEC Democrats would like nothing more than to regulate these everyday activities and have been creatively trying to find ways around the longstanding “Internet Exemption.” Standing in their way have been Lee Goodman and the other Republican commissioners. . . . 
As the Democrats have used alleged Russian interference in the 2016 election as an excuse to regulate social media, Lee Goodman has persistently pointed out their errors: foreign paid ads are already illegal and it is impractical to assume the FEC could police disclaimers on ads placed on foreign servers, so the real burden of any social media regulation would fall on American citizens exercising their First Amendment rights. . . . 
Democrats are eager to use campaign finance laws as a tool to intimidate and suppress the speech of their political opponents. Lee Goodman, defender of the First Amendment stood in their way and thereby protected the rights of all Americans — from their right not to be hauled before his agency for a tweet, to the right to a press free from government interference, to the right to fair notice of what activity is regulated or prohibited. Thank you, Commissioner Goodman.
We agree - thank you, Mr. Goodman, for your commitment to the rule of law and the Constitution and protecting the rights of all Americans during your service on the FEC. 

Friday, February 16, 2018

The Senate Blue Slip Saga Continues

Senate Democrats continue to wish that the blue slip courtesy was a rule of the Senate. However, it is not a formal rule--never was a rule--just a courtesy to advise the Senate Judiciary Committee.

We have previously highlighted the history of the blue slip and how many past Senate Judiciary chairs have chosen to manage the blue slip.

Current Senate Judiciary Chairman Chuck Grassley has previously spoken on this issue: For circuit courts, which cover multiple states, a negative or unreturned  blue slips will not be permitted to hold up nominees, unless the White House failed to consult with the home state senators; however, for district courts, which are confined to one state, the blue slip will carry considerably more weight and influence.


Chairman Grassley is simply following the Biden-Kennedy Rule regarding blue slips in the Senate Judiciary Committee. Chairman Grassley explained:
The treatment of blue slips as advisory is a bipartisan tradition. In 1978, Eastland’s successor, Sen. Ted Kennedy (D-Mass.), clarified that a negative or unreturned blue slip would not necessarily block Committee proceedings. Sen. Strom Thurmond (R-S.C.) continued this policy, as did Sens. Joe Biden (D-Del.) and Orrin Hatch (R-Utah).
Chairman Grassley reiterated this point during Judge Michael Brennan's confirmation hearing for a Seventh Circuit judicial vacancy three weeks ago:

Senator Ron Johnson returned his blue slip for Mr. Brennan. Senator Tammy Baldwin declined to return hers. I’ve nevertheless concluded that Mr. Brennan should receive a hearing . . . After reviewing the record, it’s clear the White House adequately consulted with Senator Baldwin regarding the nomination. In addition to Mr. Brennan, the White House also considered two candidates Senator Baldwin suggested. Senator Baldwin expressed to me that she’s frustrated by the state of Wisconsin’s judicial nominating commission, which has been dysfunctional and unable to recommend candidates for judicial vacancies. While I sympathize with this concern, the commission’s current shortcomings can’t be allowed to impede the President’s constitutional duty to appoint federal judges.
Senate Democrats, however, seek to continuously obstruct any efforts made by President Trump and Republicans by using any and all means. Ranking Member Dianne Feinstein stated [around the 20-minute mark]:
I really object to this . . . Senator [Baldwin] has come in and spoken with me…she feel grievously injured by this [holding a hearing without a blue slip returned]. She has worked with . . . a fine screening commission. And is deeply concerned this has happened . . .
In addition to raising the blue slip, Ranking Member Dianne Feinstein also attempted to allude to some gender bias, too, as she closed:
I find it really very hard — and particularly for a woman senator who has tried so hard, who has worked with her state commission — for her view to be rebuffed in this manner.
When asked about this comment, Ranking Member Feinstein's office did not comment further.

Nonetheless, Judge Brennan, who has garnered bipartisan support and is ABA-rated as "well-qualified," was voted out of the Senate Judiciary Committee with a vote of 11-10, sadly along partisan lines with Senate Democrats crying foul over a blue slip "rule" that does not exist.


Currently, Judge Brennan's nomination is pending on the Senate Floor, where he faces a full Senate confirmation vote. We thank Chairman Grassley for his leadership in the Senate Judiciary and work to hold hearings for President Trump's well qualified judicial nominees. 

Thursday, February 15, 2018

More Liberal Voter Suppression: This Time Military Voters

The liberal Center for American Progress has issued studies and claimed to be against voter suppression.  Yet, they have remained silent about the real voter suppression occurring in Philadelphia and now, even worse, they are actively advocating suppression of the military vote.   
The left-wing public policy group [Center for American Progress] issued a report Monday, “Election Security in All 50 States,” that called for stricter standards to prevent cybermeddling in elections by foreign governments, including banning military stationed abroad from submitting ballots via email or fax.
One state that allows such vote casting is Colorado. The center called on the state to “prohibit voters stationed or living overseas from returning voted ballots electronically.”
As Colorado Secretary of State Wayne Williams responded:
But Williams believes the Center for American Progress was wrong to ding Colorado for allowing voters who are stationed or live overseas to return their ballots electronically via email or fax.
“They don’t believe someone who works on a submarine should be allowed to vote,” Williams said. “We do.”
The report states: “Colorado should prohibit voters stationed or living overseas from returning voted ballots electronically. Regardless of the state’s secure ballot return system for electronically voted ballots, we recommend that all voted ballots be returned by mail or delivered in person.”
That’s not always possible, Williams said, and noted that Colorado has added safeguards for sending and receiving those ballots.
Colorado ranks second in the nation in the number of ballots transmitted to overseas voters based on its voting eligible population.
Just as Center for American Progress ignores voter suppression of non-Democrat voters in Philadelphia such as Green, Independent, and Republicans because it favors Democrats, it seems the reason for the attack on military voters is because they lean Republican:
 Conservatives were quick to blast the report’s recommendation as unworkable and politically motivated.
“You can bet that if the military historically voted Democrat instead of Republican, the Center for American Progress would not have a problem with it,” Peak said in a Monday post.

Voter suppression should be opposed by all regardless of party.  Whether it is intercity Green Party voters or our overseas military that is suppressed, no group should ignore or support voter suppression.  Shame on the Center for American Progress.  

Wednesday, February 14, 2018

New Excellent Judicial Nominees Show White House Cooperation with Senators

Despite the media's constant attempts to undermine the Trump presidency, it is undeniable that judicial nominations continue to be a resounding success for those who value the rule of law and respect for the text of the law.  Prof. Jonathan Adler wrote for The Volokh Conspiracy:
The White House announced its eleventh set of judicial nominees on Monday. As we've come to expect, the Administration put forward an impressive list of jurists, led by four noteworthy picks for appellate courts, including several who are guaranteed bipartisan support. 
The latest appellate nominees are Andy Oldham (Fifth Circuit), Michael Scudder (Seventh Circuit), Amy St. Eve (Seventh Circuit) and Mark Bennett (Ninth Circuit). In addition, Trump nominated John Nalbandian (Sixth CIrcuit) and Joel Carson (Tenth Circuit) in January and December, respectively.
Like previous appellate nominees, these have sterling credentials.  And as Prof. Adler describes, they also have the support of their home-state senators:
Although news stories tend to suggest the White House refuses to consult with Senators about potential judicial picks, this week's nominations tell quite a different story. All of the appellate nominations announced this week enjoy the support of their home-state Senators, including those from states with deep-blue delegations. 
The latest set of nominations illustrates that the Administration is more than willing to consult with home-state Senators before making judicial picks, even for appellate courts. All that's necessary is for Senators to negotiate in good faith. They also suggest that insofar as vacant seats on some courts languish without nominees, it's unlikely due to a lack of effort by the White House Counsel's office.
As Prof. Adler points out, if some of the most liberal and noteworthy senators could come to an agreement with the White House on excellent nominees to help with the increasing crisis in the number of vacancies, other senators must be simply obstructing for the sake of obstructing by their failure to work with the White House.  Despite what is reported in the media and the complaints of Democratic Senate leadership, the White House is willing to work with Democratic senators.  But judicial nominations are a priority, so neither the White House nor Senate Judiciary Chairman Chuck Grassley are willing to let the Democrats' mindless obstruction keep them from appointing superb nominees after a reasonable period of consultation.  For that, we are immensely grateful. 

Tuesday, February 13, 2018

Reflections on Justice Scalia on the Two-Year Anniversary of His Death

Today marks two years since Justice Antonin Scalia unexpectedly passed from this Earth.  His impact on the legal world was immense, as he was instrumental in returning to a focus on a law's text.

Much could be and has been said about his jurisprudence, his writing style, his strong but friendly personality, the effort led by Senate leadership to allow the people to speak on his successor by keeping his seat open through the election, and how well Justice Gorsuch is living up to President Trump's promise to appoint a successor in the mold of Justice Scalia.  But today, we pause to remember the great man with a few reflections from those who knew him.

In The National Law Journal:
Kannon Shanmugam, former Scalia clerk and head of Williams & Connolly’s Supreme Court and appellate litigation practice: “Even two years on from his death, Justice Scalia remains a powerful influence on the court. His legacy lives on in the court’s approach to constitutional and statutory interpretation. While there are differences in approach among the court’s members, the court largely plays on the playing field that Justice Scalia established.”
Carrie Severino, chief counsel of the conservative Judicial Crisis Network: “There are so many ways in which Justice Scalia’s legacy lives on. He was a leading voice for taking the Constitution seriously that has already inspired generations of lawyers. And his compelling arguments and trenchant prose will continue to shape our approach to the law for generations to come. Justice Gorsuch himself is not only Scalia’s successor but also someone whose approach to the law was formed in a legal environment made possible by Scalia’s leadership on the court. Justice Scalia is sorely missed, but his influence is still very much alive.”  
And on Twitter:
Ed Whelan co-edited Scalia Speaks with Justice Scalia's son, Christopher.  It is a fascinating collection of the Justice's speeches, which he delivered to a wide range of audiences on a wide range of topics, and which give insight into the intellectual and philosophical force that was Justice Scalia.  The RNLA has autographed copies of Scalia Speaks available for members to purchase on the Members Only section of the www.rnla.org website, and members can listen to a members-only conference call with Ed Whelan as well.

Rest in peace, Justice Scalia.

Monday, February 12, 2018

DHS Responds to Media's Sensationalism on Russian Election Interference

Last week, NBC News ran a "news" story that was picked up by other outlets about how the Russians had penetrated U.S. voter systems.  The only problem?  This "news" was released last summer, when National Protection and Programs Directorate (NPPD) Assistant Secretary for the Office of Cybersecurity and Communications Jeanette Manfra testified before Congress about attempts to access state voter registration systems.  Today, Ms. Manfra issued an official statement rebuking NBC News' misleading reporting:
“Recent NBC reporting has misrepresented facts and confused the public with regard to Department of Homeland Security and state and local government efforts to combat election hacking. First off, let me be clear: we have no evidence – old or new - that any votes in the 2016 elections were manipulated by Russian hackers. NBC News continues to falsely report my recent comments on attempted election hacking – which clearly mirror my testimony before the Senate Intelligence Committee last summer – as some kind of “breaking news,” incorrectly claiming a shift in the administration’s position on cyber threats. As I said eight months ago, a number of states were the target of Russian government cyber actors seeking vulnerabilities and access to U.S. election infrastructure. In the majority of cases, only preparatory activity like scanning was observed, while in a small number of cases, actors were able to access the system but we have no evidence votes were changed or otherwise impacted. 
"NBC’s irresponsible reporting, which is being roundly criticized elsewhere in the media and by security experts alike, undermines the ability of the Department of Homeland Security, our partners at the Election Assistance Commission, and state and local officials across the nation to do our incredibly important jobs. While we’ll continue our part to educate NBC and others on the threat, more importantly, the Department of Homeland Security and our state and local partners will continue our mission to secure the nation’s election systems. 
"To our state and local partners in the election community: there’s no question we’re making real and meaningful progress together. States will do their part in how they responsibly manage and implement secure voting processes. For our part, we’re going to continue to support with risk and vulnerability assessments, offer cyber hygiene scans, provide real-time threat intel feeds, issue security clearances to state officials, partner on incident response planning, and deliver cybersecurity training. The list goes on of how we’re leaning forward and helping our partners in the election community. We will not stop, and will stand by our partners to protect our nation’s election infrastructure and ensure that all Americans can have confidence in our democratic elections.”
Similarly, DHS spokesman Tyler Houlton tweeted:
The repeated inaccurate reporting by @NBCNews that government officials stand idly by is a disservice to every state and local election official across this great nation.
The National Association of Secretaries of State (NASS) and National Association of State Election Directors (NASED) both issued statements correcting the facts of the "Russian hacking" narrative.

The facts are worth repeating here, given that the media wishes to newly sensationalize this story, perhaps fearing that the "Russians stole the election" narrative is collapsing.  1. There is no evidence that any votes were changed or even that any vote tallying systems were accessed.  2. There were scans or attempted hacks of 21 state systems, some of which were not even voter registration systems but other state systems like Department of Transportation systems.  3. Only one state voter registration system was accessed, that of Illinois, and no records were changed.  

As all these people and organizations point out, there are real cybersecurity concerns facing election officials across the country, and election officials are working hard to secure their systems against the latest threats.  The media is quick to sensationalize the issue, such as when DEF CON's efforts to hack electronic voting machines was major news last year, in the interest of clicks and page views, but America is ill-served by the "Russian hacking" narrative.  It feeds liberals' anti-speech agenda, undermines confidence in our election system (which, despite the threats, is remarkably secure), and ignores the hard work that election officials are doing to ensure that our elections are secure.