Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘campaign regulation’

What Not To Wear, Minnesota polling place edition

In its decision yesterday in Minnesota Voters Alliance v Mansky, the Supreme Court ruled that a Minnesota law banning political apparel at polls ran afoul of the First Amendment. The ruling was 7-2, a classic line-up in which the conservatives, Ginsburg, and Kagan joined in a strong free speech stand while Sotomayor and Breyer were more deferential toward speech restrictions. Cato had urged in a brief that the law be overturned.

For the majority, Chief Justice Roberts wrote that while the aim of Minnesota’s law was constitutionally acceptable (keeping peaceful order and preventing electioneering at the polls) the details of its drafting were not. “A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reasonable.” So the proposition is not that states can’t regulate the wearing of campaign paraphernalia into the polling place, but that Minnesota needs to come up with rules that are more readily enforced in an even-handed way. More: Eugene Volokh; Trevor Burrus; Andrew Grossman on Twitter (“decision is exceedingly narrow and will only hit the most outlier state laws. Still, a nice win for expressive rights.”)

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Free speech roundup

  • Video now online of Nadine Strossen at Cato speaking on her new book Hate: Why We Should Resist It with Free Speech, Not Censorship. And John Samples kicks off series of blog posts about book [first, second]
  • Press vs. President: “the more tightly regulated media landscape of the early 1970s” played directly into Nixon’s hands [Matt Welch]
  • Romance writer’s bid to stop authors from using word ‘cocky’ fails in court [Alison Flood/Guardian, earlier]
  • “New law forces Google to suspend political ads in Washington state” [Timothy Lee, ArsTechnica]
  • “The Minnesota criminal harassment statute is equally dubious, applying when a person sends two or more tweets ‘with the intent to abuse, disturb, or cause distress.’ Really…?” [Venkat Balasubramani, Technology and Marketing Law Blog] “Crime in D.C. to Negligently Cause ‘Significant Mental Suffering’ by Saying Two Non-Political Things About Someone” [Eugene Volokh] “NY State Legislators Unanimously Pass A Cyberbullying Bill That Can’t Be Bothered To Define Cyberbullying” [Tim Cushing, TechDirt; Eric Turkowitz]
  • Blame failings of copyright law, not scholarly neglect, for long inattention to Zora Neale Hurston manuscript [Ted Genoways, Washington Post/Valley News]

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Free speech roundup

  • Minnesota Voters Alliance v. Mansky: SCOTUS considers state ban on political apparel at polling places [Ilya Shapiro, Cato]
  • Under American law governments cannot sue persons for defamation, and “slander of title” won’t do as substitute ploy for lawyer representing city of Sibley, Iowa [Jacob Sullum]
  • “Someone Trying to Vanish My Post About Someone Trying to Vanish Another Post” [Eugene Volokh]
  • “Free Speech and the Administrative State”, George Mason/Scalia Law Center for the Study of the Administrative State conference with videos;
  • “Influencer Marketing Remains in FTC’s Crosshairs” [M. Sean Royall, Richard H. Cunningham, and Andrew B. Blumberg, WLF]
  • Worth recalling: it was legal academia’s Critical Race movement that helped reinvigorate Left support for censorship and speech repression [Alan Dershowitz]

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Second Circuit: Schneiderman can unmask private group’s donors

At least since 1958’s NAACP v. Alabama, it has been thought settled that state demands for the disclosure of private organizations’ membership and donor lists poses very real risks of First Amendment infringement to which courts must be sensitive. Recent years, however, have seen concerted efforts to strip anonymity from donors to at least some non-profit groups with a policy emphasis. One danger — or feature, from the standpoint of some groups doing the campaigning — is that if target groups can be made to divulge such information, their supporters can be exposed to pressure, shaming, and public and private retaliation.

Kamala Harris, then Attorney General of California and now Senator from that state, did not fare well in court in such a campaign while in state office, but New York’s left-leaning Attorney General Eric Schneiderman seems to be enjoying better luck in a similar push. A Second Circuit panel has ruled in favor of his demands for the donor lists of Citizens United, the conservative group whose role in a landmark First Amendment case at the Supreme Court has made it, along with that case, “the Emmanuel Goldstein of the American left.” It will not be surprising if the Supreme Court is soon asked to reaffirm the protections of NAACP v. Alabama. [Trevor Burrus and Reilly Stephens, Cato, and thanks for mention; see also my April 2016 Cato piece]

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“Colorado: Where Anyone Can Squelch Political Speech”

“Colorado’s byzantine system of campaign and political finance regulations not only [turns] a blind eye to First Amendment concerns, but actively incentivizes politically motivated, retaliatory litigation. Colorado is unique in being the only state to effectively outsource enforcement of its campaign finance regulations by allowing ‘any person who believes’ that campaign finance laws are being violated” to initiate litigation by filing a complaint. Now a court is considering an outside group’s motion to seal the records of one such case. Opening up such proceedings to public scrutiny could work to counteract abuse by documenting the law’s chilling effect and its use to squelch the speech of opponents, as in the case at issue, in which a local citizen found herself denounced to authorities after buying a newspaper ad commenting on a slate of candidates in a school board election. [Trevor Burrus and Meggan DeWitt on Cato objection, jointly with Reason Foundation, in Holland v. Williams]

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Free speech roundup

  • Well, he would, wouldn’t he? “De Blasio thinks city-funded news outlets would be ‘more fair’” [Max Jaeger, New York Post]
  • Watch out for Honest Ads Act, which purports to force disclosure of political advertising on the Internet [John Samples, Cato] One effect of campaign donor disclosure mandates is to enable retaliation against those who back “wrong” candidates [Eric Wang, Cato Policy Analysis]
  • Court orders target not to publicize the libel takedown demand letter it got. Fair play? [Volokh]
  • Ken at Popehat is so very unimpressed with Anthony Scaramucci’s defamation suit threat to Tufts student paper. Of course Ken frequently does defend the unimpressive;
  • Complaints about corporate speech in politics subsided as fast as you could say “Patagonia” [Ira Stoll]
  • “Court Says Google Must Unmask Person Who Left Wordless, One-Star Review Of Local Psychiatrist” [Tim Cushing, Techdirt]

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Now unsealed: official report on Wisconsin John Doe probes

After the state’s high court ordered files of the politically charged Wisconsin John Doe II investigation destroyed, something else happened instead: “The Guardian published a leaked trove of documents from the John Doe II proceedings, including court filings, draft filings, and selected evidence prepared and kept by only some members of the prosecution team.” A just-unsealed report from the Wisconsin Department of Justice suggests a range of possible illegalities and rights violations, as well as political motivations, in the conduct of the investigators [“Warren Henry,” The Federalist]:

[Th]hree hard drives in particular contained nearly 500,000 unique emails (from Yahoo and Gmail accounts, for example) and other documents (email attachments, for example) totaling millions of pages. The hard drives included transcripts of Google Chat logs between several individuals, most of which were purely personal (and sometimes very private) conversations. GAB [a state agency involved in the investigations] placed a large portion of these emails into several folders entitled, ‘Opposition Research’ or ‘Senate Opposition Research.’

For example,

investigators obtained, categorized, and maintained over 150 personal emails between [state] Senator Leah Vukmir and her daughter, including emails containing private medical information and other highly personal information. [WIDoJ] was unable to determine why investigators ever obtained, let alone saved and labeled, over 150 very private and very personal emails between a Senator and her child, or why investigators placed those emails in a folder named ‘Opposition Research.’

Earlier here.

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Watch: videos from Cato conference, The Future of the First Amendment

Watch: videos now online from last month’s Cato conference, The Future of the First Amendment. I talk religious freedom on a panel with Robin Fretwell Wilson of the University of Illinois Law School and John M. Barry, author of Roger Williams and the Creation of the American Soul:

Eugene Volokh gives a keynote speech on the “revolution in remedies” that is changing libel and privacy law, which “ties in with technological change” in the nature of media, over a period in which there has been virtually no change in the substantive doctrine of libel:

Other panels include a discussion of the remarkable findings of a new Cato poll on free speech and presentations on a diverse array of other topics including European regulation of online media, commercial speech, and campaign finance.

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