Charles Koch Institute's Senior Fellow for Free Speech and Toleration Casey Mattox, who spoke on campus free speech at the RNLA's National Policy Conference in April, described how three First Amendment cases from the Supreme Court's October 2017 term would impact free speech on college and university campuses. First, on Minnesota Voters Alliance v. Mansky:
The Mansky decision means that universities must not only avoid viewpoint discrimination; they must affirmatively enact policies eliminating the discretion that could allow it. . . . In other types of government forums — for example, parade or rally permits on public streets or parks — the Supreme Court had previously required that the discretion of the decision makers must be “bridled” by fixed and objective criteria. A government’s failure to create these objective standards to limit the decision maker’s authority was itself unconstitutional because of the risk of viewpoint discrimination.
Some attorneys have argued that this "unbridled discretion" doctrine is limited only to traditional public forums (such as public parks and streets) and does not bind universities. Thus, it was permissible for administrators to make recognition, funding, or other decisions on vague or unspecified criteria, and the burden remained on students to show that they had been discriminated against because of their viewpoint. . . . But the decision in Mansky eliminates any doubt that the unbridled-discretion doctrine applies in any forum, including those commonly found on campus. Universities will now have to ensure that administrators or student governments making decisions about student expression are guided by fixed, neutral, and objective criteria — protecting students from hidden viewpoint discrimination.
Second, Mr. Mattox writes of the impact of Janus v. AFSCME:
Public universities require students to pay hundreds or thousands of dollars per semester in “student activity fees.” . . . In Southworth v. Board of Regents, University of Wisconsin System, the Supreme Court rejected a First Amendment compelled-speech challenge to these mandatory fees. . . . After Janus, Southworth may be in question. It is noteworthy that the Court’s 49-page opinion, surveying its prior precedent, omits any mention of the Southworth exception from the rule that government may not force people to fund others’ speech. The Court’s strong decision in Janus against compelled funding of others’ speech, and overturning the Abood decision on which Southworth largely rested, may lay the groundwork for a new challenge to Southworth. Even if Southworth itself isn’t threatened, universities should examine whether their student-organization funding systems are really like the one upheld in Southworth. To the extent that a university’s student-fee allocation program directs these mandatory fees toward specific groups or tiers of student-group funding in ways that advantage certain views, they may be at greater risk. And, as noted above, Mansky at least places the burden on universities to demonstrate that they have strictly limited discretion over student-activity-fee allocations to make it more difficult for viewpoint discrimination to happen.
And finally, on NIFLA v. Becerra:
Some professional schools and degree programs have sought to impose as speech codes the professional-ethics codes developed to apply to members of those professions. These codes are often written broadly (e.g., prohibiting “unprofessional behavior”) by voluntary professional associations and not meant to be strictly applied by government. Speech codes such as these are routinely deemed unconstitutional when drafted by universities and applied to all students. Some colleges and programs have argued that they may nevertheless enforce a professional-ethics code against students in that particular program — including its limits on “unprofessional” speech. The Court’s virtually complete rejection in NIFLA of new First Amendment exceptions, including one unique to “professional speech,” should make it more difficult for institutions to justify these professional-speech codes under the First Amendment.
The Roberts Court, particularly in the last term with the addition of Justice Gorsuch, has been a strong speech-protective Court. Judge Kavanaugh has a strong record on free speech cases and will likely continue this trend when he is confirmed to the Supreme Court. While the Court does not hear many campus free speech cases, mainly because universities' speech-suppressing policies are usually clearly unconstitutional and quickly dropped or invalidated once challenged, its First Amendment jurisprudence has many implications for free speech on campus.
RNLA member Prof. Brad Smith wrote about the first judicial opinion issued by Judge James Ho, one of President Trump's nominees to the Fifth Circuit:
“The unfortunate trend in modern constitutional law is not only to create rights that appear nowhere in the Constitution, but also to disfavor rights expressly enumerated by our Founders.” . . .
His first opinion, released in April, was a dissent in a case asking whether an Austin, Texas, $350 limit on political contributions was constitutional. . . . He began with a detailed analysis as to why Austin’s $350 limit on campaign contributions should be struck down as unconstitutionally low under Supreme Court precedent. Straightforward enough. Ho went further, questioning the right of government to limit political participation at all. “As citizens,” he wrote, “we enjoy the fundamental right to express our opinions on who does or does not belong in elected office.”
Prof. Smith describes how Judge Ho applied the anti-corruption standard that is the only constitutionally permissible rationale for contribution limits, according to the Supreme Court, in a common-sense, real-world fashion, instead of the in the theoretical, and therefore far too expansive, manner in which it is usually applied:
Ho pointed out that contribution limits prohibit the exercise of protected First Amendment rights to support candidates and voice political views even when there is no corruption whatsoever. Adding a badly needed dose of realism, Ho wrote, “Countless Americans contribute for no other reason than to support candidates who share their beliefs and interests … without any inkling of a quid pro quo agreement. Indeed, many Americans contribute without ever even communicating with the candidate. … A donor might simply be inspired by the candidate’s prior record of public service, proposed future action, or a particular speech or debate performance. Such contributions are far from corrupt.” . . .
What makes Ho’s opinion so refreshing is that it emphasizes actual corruption and the motives of donors, bringing campaign finance law back to the real world. Too often courts have sanctioned vague restrictions on political speech to meet nebulous goals and strained hypotheticals. The First Amendment is not a relic of an era gone by, and it’s rewarding to see a judge who thinks the rights enumerated in the Constitution are still meaningful.
Judge Ho's opinion respects the text of the Constitution, and his reliance on the Constitution protects the enumerated rights of individuals against over-regulation by the government. This is the kind of text-based legal reasoning starting to be issued around the country by judges nominated by President Trump, who are beginning to restore the rule of law to the judiciary.
Wednesday, the Federal Election Commission approved a draft Notice of Proposed Rulemaking on Internet Communication Disclaimers and the Definition of "Public Communication":
The Commission approved a Draft Notice of Proposed Rulemaking requesting comment on two alternative proposals to amend its regulations concerning disclaimers on public communications on the internet that contain express advocacy, solicit contributions, or are made by political committees. The approved draft notice also requests comment on proposed changes to the definition of “public communication.” Comments must be received on or before 60 days after the date of publication in the Federal Register. The Commission will hold a public hearing on this notice on June 27, 2018.
Thanks to the steadfast defense of the First Amendment and the rule of law by the Republican FEC commissioners, the Democrat commissioners have not be successful in their efforts to expand and change the rules regarding Internet advertising ex post, in response to complaints about Internet activities that are clearly legal and/or unregulated under the FEC's current regulations and policies. The FEC Democrats have, at times, also supported unrealistic requirements that would make disclaimers take up the entirety of small Internet ads (such as those on Twitter or mobile devices).
Through the efforts of the Republican commissioners, the FEC is going about regulating this important area in the correct way, through notice and comment rule making with ample opportunity for the regulated community and interested parties to speak on the issue and with plenty of notice to the regulated community on any changes in the rules. All along, the Republican commissioners have supported a reasonable, common-sense approach to regulating Internet communications that protects the public's interests and comports with the goals of campaign finance regulation while taking into account the constraints and opportunities provided by changes in technology, all while protecting the political speech rights of Americans.
The RNLA will provide in-depth analysis of the proposals in this NPRM in the coming weeks. But its very existence is a testament to the leadership of Chair Caroline Hunter, Commissioner Matthew Petersen, former Commissioner Lee Goodman, and the many Republican FEC commissioners who have gone before them.
Today, the Supreme Court heard oral arguments in Minnesota Voters Alliance v. Mansky, a challenge to Minnesota's ban on political apparel at the polling place. RNLA member Ilya Shapiro summarized the problems with the law in the Wall Street Journal:
Minnesota’s ban, by contrast, finds no historical parallel. A generic pro-voting message like “Rock the Vote” is arguably a political statement forbidden by the law. But how could it possibly be construed as pressuring anyone to vote for a particular candidate? Whatever legitimate concerns the state may have about the electoral process, it can’t justify a ban on voters’ nondisruptive speech—let alone on unobtrusive paraphernalia that’s unrelated to any issue or candidate on the ballot.
Minnesota’s ban on political apparel is so sweeping that another Supreme Court precedent is far more relevant than Burson. In the 1987 case Airport Commissioners v. Jews for Jesus, the high court unanimously struck down a ban on “First Amendment activity” at Los Angeles International Airport. The court explained that such a ban was overbroad because it necessarily extended far beyond speech “that might create problems such as congestion or the disruption of the activities of those who use LAX.” . . . That’s not to say that places with security or governmental-integrity concerns have to be free-for-alls. Burson was right to allow reasonable regulations that ensure orderly elections. Courtrooms and other sensitive areas—what lawyers call “nonpublic forums”—can impose certain restrictions. But “the wearing of a T-shirt or button that contains a political message,” the court explained in Jews for Jesus, “is still protected speech even in a nonpublic forum.”
Most fundamentally, Minnesota’s law is unjustified because its fear of political expression is so disconnected from normal society. . . . As the Court found in Tinker, which upheld students’ rights to wear black armbands to school in protest against the Vietnam War, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”
It’s vital that the Supreme Court defend voters’ right to express themselves so long as they don’t prevent other voters from going about their civic business. . . .
RNLA member Steve Klein described highlights from oral arguments during today's Federalist Society teleforum call:
- Except for Justice Thomas, a lot of participation from all the justices, questioning both sides intensely.
- Justice Kennedy, Alito, and Roberts wanted an articulation of a limiting principle of what is “political.” David Breemer arguing for MVA said that it’s clear this law is overbroad.
- “Please ID me” buttons – Mr. Breemer acknowledged they could be banned under anti-fraud/deception laws; whether display of an ID (as a means of making other voters think that ID was required) could be banned in the polling place was not raised during oral arguments.
- Justice Alito laid out the absurdity of breadth of prohibition.
- State has backed off breadth, perhaps in poll worker instructions, saying political is related to election and well-known. Justice Alito said that actually makes it worse. Justice Alito asked if wearing a rainbow shirt was ok, state said yes, as long as gay rights were not on the ballot.
- Fact that election judges, who have authority to judge what is allowed, are selected from both major parties is supposed to alleviate concerns about viewpoint discrimination.
- Justice Roberts pointed out that the punishment belies the interest in polling place orderliness that state puts forward, because person is allowed to vote but name is taken down for later fine. The force of the law is the chilling effect on speech.
- Even if the Court uses non-public forum analysis, there would be de facto viewpoint discrimination (NRA banned but “Parkland Strong” ok; Colin Kaepernick jersey ok, All Lives Matter not). Respondents said these are tough calls but poll workers need to be able to make these calls to maintain order.
- Justice Kagan had lighthearted criticism of polling place as place of reverence where we can suspend politics.
- Chilling conclusion by Respondents: Justice Kagan jokingly said, maybe you should make the law broader, and they said yes, we could make it broader.
- Effort to find limiting principle but aside from Justice Alito, no clear indication where any justice stood
- Burson v. Freeman was plurality opinion, and we will likely see different perspectives here also.
- Overbreadth law protects against arbitrary and discriminatory enforcement.
- Mr. Breemer pointed out several times that disruption and delay in the polling place is not caused by a person coming in an NRA shirt but by a poll worker saying the voter cannot wear it, subsequent discussion, taking down the voter's name, etc.
- Justice Gorsuch pointed out that state has to put forth an interest that justifies the ban.
- Mr. Klein concluded by noting that voting is very important, but there have to be limits on power of polling place workers to restrict voters’ rights; the law especially should not punish voters for participating in our democracy.
Given the state's counsel's different responses to hypotheticals proposed by the Court (notably, that a shirt with the text of the Second Amendment would be political, and therefore banned, but not a shirt with the text of the First Amendment), this tweet by Baker Hosteler attorney Andrew Grossman summarized the key issue in the case well:
The entire transcript in this important case can be read here, and our past coverage of the case is here.
RNLA member Ken Klukowski wrote a piece for last month's SCOTUSblog symposium on Minnesota Voters Alliance v. Mansky. Mr. Klukowski analyzes how the Supreme Court will likely apply the controlling precedent, Burson v. Freeman (1992), which did not have a majority opinion, in light of current First Amendment doctrine and subsequent decisions regarding evidentiary burdens when applying strict scrutiny.
He also discusses the relevant First Amendment law, under which Minnesota's ban on all political apparel at the polls is clearly overbroad:
Minnesota’s law bans all political speech in whatever form, including all passive speech. . . . Here, in 2010 a Minnesota voter wore a Gadsden flag T-shirt (a picture of a rattlesnake with the phrase, “Don’t Tread on Me”), a symbol associated with the Tea Party, and a lapel button that said, “Please I.D. Me.” That voter, Andrew Cilek, was initially denied the opportunity to cast a ballot. He was later allowed to do so, but only after officials recorded his identity for possible prosecution.
Yet neither of those clothing items should be a problem. Regarding the T-shirt, the Tea Party is a governing-philosophy political movement, not an actual political party that runs candidates. There was no “Tea Party candidate” on the ballot alongside Democrats and Republicans. Regarding “Please I.D. Me,” Minnesota has no voter-ID law, nor was that issue on the ballot in 2010, so the button had nothing to do with the 2010 election. . . .
Under the overbreadth doctrine, laws facially violate the First Amendment if they permissibly burden some types of speech, but also go beyond that to restrict substantially more speech than necessary to achieve the permissible outcome. Such laws have a “chilling effect” on constitutionally protected speech. The courts frequently invalidate such laws, sending the issue back to the legislature to formulate a narrower law that achieves the permissible goal without scaring people away from saying things that the Constitution protects. . . . In this case, the discussion revolves around why Minnesota must go beyond blocking vote solicitations and campaigning to also ban T-shirts, baseball caps and other types of passive communication unrelated to candidates and issues on the current ballot in order to stop fraud and intimidation. In today’s environment, people can regard all sorts of innocuous messages as conveying some kind of political content.
But as important as the overbreadth analysis is (and the law is certainly far from narrowly tailored), the government has simply failed to prove that its governmental interests in preventing fraud and intimidation are advanced by the prohibition:
The question is not whether the Minnesota statute violates the First Amendment as an overbroad restriction on speech. Rather, the question becomes whether Minnesota has proven that its statute does not violate the Constitution — that is, proven that banning NRA and Tea Party shirts and hats is necessary to prevent fraud and intimidation. The government failed to carry that burden.
The Supreme Court will hear oral arguments in this important case next Wednesday, and we look forward to a decision this term protecting the right of voters not to be turned away from the polls for their passive speech.
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.
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.
Republican Federal Election Commission Commissioner Lee Goodman announced today that he will resign from the FEC on February 16 to join the political law practice at Wiley Rein. In his four years of service at the FEC, Commissioner Goodman has been a stalwart defender of the First Amendment, due process, and the rule of law, often speaking out strongly against the efforts of his Democratic colleagues to regulate political speech on the Internet and change the rules governing political activity after the fact and without following proper regulatory procedures.
Commissioner Goodman described some of the achievements of the FEC during his tenure in his resignation letter to President Trump:
We issued several advisory opinions recognizing the use of new technologies to galvanize political participation . . . . Meanwhile, we restrained unlawful efforts to regulate, and in some cases censor, American citizens’ political opinions on YouTube and Twitter, as well as the freedom of press outlets like Fox News and WCVB-TV of Boston to make editorial decisions concerning their political coverage. . . .
Most importantly, I have faithfully discharged my responsibility to balance the agency's regulatory objectives with the First Amendment rights it regulates. Since the agency’s inception, the Federal Election Commission’s unique mandate to respect the core constitutional rights of citizens acting, speaking and associating for democratic purposes has provoked criticism from those who disagree with the balance drawn. Some would even prefer the Commission ignore the First Amendment altogether. But protecting First Amendment rights is an inherent part of the Commission’s mission. Thus, I have endeavored throughout my service to preserve the Constitutional right of American citizens to speak, hear, and think freely about their democracy. It has been my duty and privilege to defend this fundamental human freedom.
Commissioner Goodman's steadfast efforts to protect Americans' rights of free speech and due process have been recognized by the election law community. RNLA leaders and members were quick to praise him when his resignation was announced:
RNLA President Elliot Berke: "Lee's tenure on the FEC was marked by grace, dignity, and professionalism. He is a good man and a good friend and I wish him nothing but the best as he returns to the private sector."
RNLA Chair John Ryder: "Lee Goodman is a fine lawyer. The FEC and the country were fortunate to have his service over the past several years. His strong defense of the First Amendment rights of all Americans will be missed on the commission."
RNLA Vice President for Election Education David Warrington: "As an FEC Commissioner and former Chairman of the agency, Lee was a champion for the First Amendment and the right of all Americans to participate in the political process. He defended those rights at a critical time when they were under assault by those inside and outside the government that sought to restrict the freedoms of speech, assembly, and the press. I am sure he will continue fighting for those same principles as he returns to the private practice of law."
RNLA Member (and Mr. Goodman's future Wiley Rein colleague) Eric Wang: "Lee was a great champion for protecting political speech on the Internet from excessive regulation by the FEC, and for keeping the agency from interfering with the news media. Lee also fought hard to ease the regulatory burden on the beleaguered national and state party committees. I look forward to working with Lee as he presses on with these battles on behalf of clients."
RNLA Executive Director Michael Thielen: "All Americans are indebted to Lee Goodman for his work to preserve First Amendment rights and his efforts to prevent the FEC Democrats from politicizing the FEC to achieve their liberal policy goals. Lee is passionate about the Constitution, the rule of law, and free speech, and he will represent his new clients at Wiley Rein well.
For some examples of the many ways in which Commissioner Goodman has defended the First Amendment and the rule of law at the FEC, read our past blog posts on him here. Thank you, Commissioner Goodman, for your faithful service to our country!
RNLA member Brad Smith wrote last week in the Washington Examiner to remind us about how the IRS under President Obama targeted conservative organizations, delaying their applications for tax-exempt status and asking harassing and illegal questions as part of the IRS' heightened review process for organizations with names containing such dangerous words as "Patriot":
Finally, last October, the IRS signed a consent decree in federal court in which it admitted to targeting conservative organizations for more than two years, from 2010 through 2013. . . . This IRS targeting of conservative organizations in the run-up to the 2012 election should be one of the major scandals of our time. Researchers from Stockholm University, Harvard’s Kennedy School of Government, and the American Enterprise Institute concluded that a fully mobilized Tea Party, unhindered by IRS harassment, would have brought the Republican Party between 5 and 8.5 million votes. You may recall Obama won the popular vote by just under 5 million votes.
Yet this issue has quietly gone away without any consequences for the wrongdoers, and the press has already started changing the history books:
Instead, what we are now seeing is an outright attempt to rewrite history so as to whitewash the entire affair. Newsweek has gone so far as to call the scandal “fake news,” with one of its columnists calling it “a lie.” A Dec. 29 editorial by the Washington Post claims that there was “mismanagement … but not deliberate targeting.”
When the left and the media do acknowledge the targeting and harassment, they are quick to point out that liberal organizations were also targeted. But as Prof. Smith notes, the IRS admitted that 75% of the organizations targeted were conservative-leaning, while less than 5% were progressive-leaning. Prof. Smith concludes by reminding readers of the source of the targeting scandal:
As we have documented elsewhere, in targeting conservative organizations in the run-up to the 2012 election, the IRS appeared to be acting at the suggestion, though not the direct request, of President Obama and leading Democratic lawmakers. This was not a case of mere “mismanagement,” but a bureaucracy responding to the political demands of the party then in power.
Congress should make sure that this never happens again, and act to get the IRS out of the business of regulating politics.
The IRS targeting scandal reminds us to be wary of government bureaucracies with the power to regulate political speech, which is why legislation such as the misnamed "Honest Ads Act" and many informal proposals to respond to Russian efforts to interfere in the 2016 election are so dangerous.
David Keating, President of the Institute for Free Speech, and RNLA member Paul Jossey wrote in The Hill about how liberals and Democrats are using Facebook advertisements purchased by Russian agents as an excuse to regulate the online political speech of Americans. First, they pointed out the narrow scope of the Russian ad problem:
As a practical matter, the Russian ads appear to have as much substance as spitting in the ocean. Estimates indicate the ads cost $150,000, and over half was spent after the election. By comparison, the money spent in the 2016 election in support of Donald Trump and Hillary Clinton was over 16,000 times more than the money Russians spent on ads. At most, only four percent of the nation’s voting age population saw one of the Facebook ads at issue. . . . [M]any of the ads occurred in 2015. Importantly, few even mentioned federal candidates. . . .
Yet, despite their narrow audience and scope and no evidence of the ads having any impact on Americans' voting decisions, liberals are rushing to use them as an excuse to regulate speech:
Various interests have seized on Russian chicanery to push “reforms” lacking priority in less neurotic times. Sens. Amy Klobuchar (D-Minn.) and Mark Warner (D-Va.) sent a “Dear Colleague” letter seeking new rules for online ads. The resulting bill would burden internet speech with suffocating rules, even possibly banning some forms of online speech. Instead of hitting the Russians, the bill instead targets American speech, press and assembly rights guaranteed by the First Amendment. In short, despite the dearth of candidate references in the Russian ads, there is already a rush to chill the world’s most dynamic speech forum.
After pointing out the sheer impracticality of any rule against foreign "influence" in our world with instant global communications, Mr. Keating and Mr. Jossey describe the real danger here -- government pressure to suppress certain speech:
The Washington Post reported that President Obama confabbed with Zuckerberg to ensure people on Facebook saw only legitimate news sources. The head of the federal government asking a media company to censor unwanted speech is frightening. Facebook says, “We share the values of free speech, that when the right to speech is censored or restricted for any of us, it diminishes the rights to speech for all of us.”
But when government officials pressure it and other online outlets to police political speech, censorship risks skyrocket. The government should focus on ensuring that our voting machinery is safe from foreign hackers. Protection is also needed to prevent foreign agents from stealing internal candidate campaign communications. But when the issue is speech, we must exercise great caution lest zeal to curb foreign influence instead damages our own free speech rights.
Lawmakers should exercise caution when considering any rule that limits speech or creates new regulations of speech, and any response to the limited (and quite frankly, incompetent) attempts by Russian agents to influence public opinion last year should be very narrow, targeted specifically to foreign speech, and specifically exempt speech by American citizens. Any other internet speech regulation would be unconstitutional, in addition to being a bad idea. Fortunately, Republicans in Congress and at the FEC understand this well. As Mr. Keating and Mr. Jossey quite correctly point out, American citizens are the ones whose rights are taken away when speech is regulated.
RNLA Advisory Council member Dan Backer cautioned against further regulation of political speech on the Internet in The Hill. He noted that FEC Democrats are using the allegations of Russian interference in last year's election to call for regulatory changes, but paid political communication on the Internet is already regulated by the FEC:
Broadening Internet regulations is a bureaucrat’s solution in search of a problem. As outlined in the Federal Register, the FEC already requires a disclaimer for any “public communication” that is “placed for a fee on another person’s website.” This includes paid express advocacy — any paid communications “advocating the election or defeat of a clearly identified candidate." Whenever an individual, corporation, labor union, or political committee “pays a fee to place a banner, video, or pop-up advertisement” on another’s website, they are engaging in “public communication” that requires a disclaimer.
But an individual's ability to speak and disseminate his or her message for free on the Internet has made it into a bastion of free speech that amplifies individual voices, and the FEC should not destroy it through regulation:
This consideration alone has compelled the FEC to allow the “vast majority of Internet communications” to “remain free from campaign finance regulation.” And our public debates have been better off for it.
For good reason: Everyone can watch television or listen to the radio, but only those with money can use these mediums to communicate. The shift from receiving information to conveying information was a quantum leap, and the Internet enabled that. Today, we’re all essentially media entities, since we can all disseminate our ideas to the general public. This is a powerfully democratizing force. The FEC’s rulemaking would turn the clock back to the 20th century.
The Internet must be left largely unregulated to preserve it as a convenient, inexpensive, and easily accessible tool for the robust exercise of free speech. The Internet’s unregulated nature is, at least in part, its charm. Even the FEC has recognized as much, describing the Internet as “a bastion of free political speech, where any individual has access to almost limitless political expression with minimal cost.”
We thank the Republican FEC commissioners and free speech advocates like Mr. Backer for fighting against the FEC Democrats' and the "reform" community's harmful urge to regulate core political speech.
RNLA member Eric Wang wrote today about how the "Honest Ads Act" currently pending in Congress would burden Americans' free speech rights while doing very little to prevent foreign political ads:
According to the bill’s own legislative findings and its sponsors’ remarks, more than $1.4 billion was spent on online political advertising last year. Of that amount, some $100,000 (less than 0.01 percent) has been reported thus far as coming from Russian interests. But S.1989 fails at even a perfunctory attempt to target foreign interference. Instead, the bill would almost entirely regulate Americans.
Mr. Wang explained the statutory changes that the bill would make:
S.1989 begins by undoing the Federal Election Commission’s “internet exemption,” under which online political speech generally is not regulated unless it is a “communication placed for a fee on another person’s website.” . . . The change may appear subtle, but it makes a world of difference as groups making even minimal expenditures could be regulated for content on their own websites, blogs and mass emails. . . . Videos that groups post on YouTube and anything they publish on Facebook and Twitter also possibly could be regulated under S.1989.
S.1989 next expands regulation of so-called “electioneering communications” to include online ads that refer to elected officials and candidates within certain pre-election periods. Again, this legislative rhetoric obfuscates reality. In fact, many “electioneering communications” are non-electoral issue advocacy. . . . At least under current law, only TV and radio ads targeted to those eligible to vote for the referenced candidates are “electioneering communications.” Despite the bill’s legislative findings about the ability to microtarget internet ads, S.1989 would indiscriminately regulate online ads even when they are not targeted at eligible voters. Thus, ads inviting New Yorkers to contact House Ways and Means Committee Chairman Kevin Brady (R-Texas) about the pending tax bill could be regulated, as could ads asking Texans to urge Senate Minority Leader Charles Schumer(D-N.Y.) to stop blocking judicial nominees.
S.1989 also would effectively impose a new reporting requirement — on top of the existing FEC reporting burdens — for political and issue advertising costing as little as $500. A publicly accessible database would have to contain a copy of all regulated ads and details about how each ad was targeted, when it ran, the average rate charged, the candidate or “national legislative issue of public importance” discussed, and information about the sponsor and its officers or board members. . . . The compliance costs, when combined with the liability that S.1989 would impose on online platforms for recordkeeping errors, may drive online advertising costs out of the reach of many small grassroots organizations. . . .
Mr. Wang concludes by proposing some alternate, and much more effective, means of addressing the problem of foreign purchases of ads. Notably, Congress could amend the Foreign Agents Registration Act (FARA), which is a law actually tailored to address foreign influence without impacting the important rights of Americans. That is precisely the problem with the proposals to date: they regulate Americans' free speech rights without actually preventing objectionable foreign speech.
Yesterday, Allen Dickerson of the Center for Competitive Politics (as of today, now called the Institute for Free Speech) testified to the House Oversight and Government Reform Committee’s Subcommittee on Information Technology on the dangers posed to free speech by proposals to regulate internet advertisements (footnotes omitted):
It is not obvious that anything will be gained in exchange for these burdens on fundamental liberties. Whatever modest advances may be made in preventing foreign influence will be on the backs of regulated Americans, who will bear the overwhelming burden under any proposed campaign finance regulation. . . . [B]roadcast mass advertising is not a game for small grassroots speakers. . . . By contrast, Facebook or Google AdWords advertisements calling for named members of Congress to, say, repeal the Jones Act in the immediate aftermath of a devastating late September hurricane, are more likely to be engaging in those “issue discussions unwedded to the cause of a particular candidate” that are “vital and indispensable to a free society.” The Supreme Court is less likely to bless the regulation of that speech. . . .
Mr. Dickerson points out the current proposals are impractical and would expand the definition of electioneering communications to include genuine issue speech:
Unless Congress can assure itself that it is regulating electioneering, and not mere political discussion about issues of public interest, it ought to act with care. After all, as the Supreme Court noted in the landmark case of Mills v. Alabama, “[w]hatever differences may exist about the interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes.”
In addition, there are practical concerns with merely cloning the electioneering communication standard applied to broadcast ads. What constitutes a communication reachable by 50,000 persons in the “relevant electorate?” Do the technical means exist to determine that answer without imposing insurmountable compliance costs? After all, basic economics dictates that such costs will be passed on to the consumer. And increasing compliance costs will crowd out precisely the small, grassroots speakers that are most vulnerable and rely most upon the Internet to disseminate their message. Conversely, removing the targeting requirement entirely will simply expand the scope of regulated communications, sweeping in discussions of key legislators, such as committee chairs, even where those conversations are not directed at constituents and are almost certainly not intended to affect electoral results.
In the end, Mr. Dickerson cautions against a broad regulatory approach that may or may not actually prevent foreign advertising (some of which already prohibited by law) but would certainly infringe on Americans' important rights of political speech online:
These concerns suggest caution. The Internet’s role as a conduit for grassroots speech and association is delicate, and too-easily crushed by overzealous or ill-considered restrictions. In particular, Congress should be wary of burdening an enormous swath of Americans’ grassroots political advocacy in the name of preventing, or attempting to prevent, relatively small foreign purchases. That concern is especially acute where such foreign meddling is already regulated under an unrelated statutory regime that does not burden Americans’ First Amendment liberties.
Mr. Dickerson's entire testimony is well worth reading. A point that he makes throughout is worth remembering: the internet allows small, grassroots organizations and individuals to speak (i.e., advertise their message) in a way that is unprecedented. If liberals are truly concerned about "dark money," the influence of the rich and powerful, and corporate speech drowning out the little person, as they claim they are, they will stay far away from regulations that restrict internet speech, as those regulations would disproportionately impact individuals' and small organizations' ability to disseminate their messages.
Last week's op-ed by RNLA Vice President for Election Education David Warrington on efforts by Democrats on the FEC to regulate political speech on the Internet provoked an odd, though perhaps predictable, response on Twitter, ending with former FEC Commissioner Ann Ravel tweeting that the "point of the article" was to generate death threats against her. This week in the Daily Caller, RNLA Executive Director Michael Thielen responded:
No, former Commissioner Ravel, it is not. The purpose of the editorial was to oppose Commissioner Weintraub’s veiled attempt to retrench the free speech rights of American citizens on the Internet, regulations such as your proposal to establish a national database of the names of all Americans who post political opinions on the Internet and to regulate even free posts, and your calls—even as late as this morning—to “rethink all the exemptions for the internet.”
Mr. Thielen then described how former Commissioner Ravel's response was a classic avoidance technique used by the left to avoid engaging in a policy debate on the issues that they will lose:
But liberals like Ravel apparently prefer not to defend the substance of past votes or the effects of current proposals but instead dismiss our opinion as just another extremist threat. It’s certainly a more convenient tact. It is much easier to dismiss a contrary opinion than to debate it on the merits. But resorting to that old liberal meme that conservative speech can be so easily dismissed as extremism or invitation to violence does a disservice to the American people whose free speech rights are at stake.
After repudiating the use of violence, shouting down speakers, threats, and other inappropriate responses to speech that a person disagrees with, Mr. Thielen pointed out how liberals' favorite tactics to intimidate and regulate threaten free speech rights of all Americans:
Ravel and her allies on the left are trying to promote their worldview by limiting speech through intimidation (dismissing all criticism as a threat) and regulation. Regulation—the favorite tool of liberals for every issue—suppresses speech in subtle and not so subtle ways.
Regulations, especially vague ones, make speech cost more. Consider the complex web of campaign finance laws that organizations wishing to speak on political issues and candidates have to navigate simply to express their views: disclaimer requirements, registration and reporting requirements, disclosure rules, and so on. Consider how Democrats are constantly trying to raise the price of speaking through even more regulation, such as through the DISCLOSE Act reintroduced in Congress every year. Consider how campus groups such as the Berkeley College Republicans have had to retain counsel and file lawsuits simply to invite conservative speakers to campus on the same basis as liberal speakers, due to campus speech regulations. Fortunately, there are many civic-minded attorneys, such as RNLA Board of Governors member Harmeet Dhillon, to represent these individuals and organizations at greatly discounted or pro bono rates.
Mr. Thielen also discusses how there is a very important policy debate -- the regulation of political speech on the Internet -- underlying this, and liberals' tactics only distract from the debate and the threat to citizens' free speech rights.
RNLA member Eric Wang wrote in USA Today how the rush to regulate foreign speech on American political and policy issues will inevitably stifle American speech, pointing first to the example of China:
Recent revelations that Russian interests used social media to interfere with the 2016 American election campaign have sent lawmakers scurrying to respond. China’s “Great Firewall” offers one possible model for securing our democracy. . . . China censors any agitators, foreign or domestic, on social media. Politically sensitive topics like Tibetan self-determination, the Tiananmen Square demonstrations, or resistance against the Communist Party are off-limits. Of course, the Great Firewall also completely blocks access to Facebook, Twitter, and thousands of other websites. . . . Emulating China’s disregard for free speech may seem like mere satire for Americans. . . . But recent calls to regulate online political speech by foreign interests directed at Americans seem to articulate no bounds. There is a real risk that a rush to regulate will threaten basic civil liberties. . . .
As Mr. Wang points out, the frightening example of China shows that control of the internet almost inevitably leads to censorship. Even if American citizens' right to speak is not curtailed, their right to listen would be:
Any regulation of speech about political issues by foreigners could end up entangling U.S. citizens. . . . Even if we could use technology, such as blocking overseas Internet Protocol (IP) addresses, to prevent only foreign nationals from influencing us, this would still limit Americans’ First Amendment rights. As the Supreme Court has held, the right to speak also involves the right to listen.
Mr. Wang includes some interesting examples of the various ways foreign actors seek to influence opinion in the U.S. and concludes by pointing out that foreign attempts at influence are inevitable and certainly not new:
Except in the most closed societies, speech has always seeped across national borders. In an irony befitting today’s topsy-turvy politics, Democrats now decry Russia’s attempts to aid Trump last year. But last year, Republicans condemned foreign leaders who urged Americans to reject Trump. Look at history as well. The book “Democracy in America” is one of the most influential tracts on our political system, and remains required reading in American university political science courses today. It was written, of course, by Alexis de Tocqueville, a Frenchman. By regulating Americans’ access to foreign speech about our politics, we risk becoming a “hermit kingdom.”
All this is not to diminish the threat of foreign interference in our democracy. But First Amendment rights, once curtailed, are not easily restored. Therefore, we must carefully consider how we handle this issue. Rushing to restrict Americans’ political freedoms in the name of curbing foreigners’ political speech would play right into Russia’s hands.
As we have been discussing frequently in the past few weeks, while we may resent foreign attempts to influence our political process, regulating and restricting more than is already done in the law risks stifling speech by American citizens on important political and policy issues and isolating the U.S. internationally in a way that is unthinkable in a modern free society.
