Did you guess “Canada”? The Canadian federal elections agency “will consider any substantial public talk or advocacy about climate change during the weeks around the Oct. 21 general election as potentially a form of election advertising, and thus only legal if it complies with the Elections Act.” [J.J. McCullough, Washington Post]
“When public officials or those running for office call out the political donations of people they don’t like, what’s the goal? Is it merely to shame them?” I comment in this new Cato Daily Podcast with Caleb Brown.
More on the controversy over Rep. Joaquin Castro’s (D-Tex.) tweet: Katie Rogers and Annie Karni, New York Times; Bradley Smith, National Review, Christian Britschgi, Reason; and earlier episodes, not exactly parallel but with some points of similarity, involving Sen. Marco Rubio (Maduro-cozying restaurant owner) and the then-campaigning Donald Trump (“They better be careful, they have a lot to hide!”).
- Second Circuit decision restricting public officials from blocking foes on Twitter is likely to discourage local electeds from sharing on social media, among its other problems [Gabriel Malor thread, John Samples/Cato, earlier]
- State of Washington defines lawyers’ pro bono work as “campaign expenditure,” even when it goes toward ballot access effort for a measure that never reached the ballot to be campaigned over. Review and clarification by high court sorely needed [Ilya Shapiro, Trevor Burrus and Patrick Moran on Cato amicus brief in Evergreen Freedom Foundation v. State of Washington]
- Freedom of press not just for those who own one: “Minnesota Supreme Court Holds That Nonmedia Speakers Are Fully Protected by First Amendment” [Eugene Volokh, defamation law]
- “Publishing Court Records Containing Home Address Not Actionable Invasion of Privacy” [Volokh on a pattern that sometimes gives rise to claims of “doxxing”]
- FOSTA, the law hailed as creating a pioneering exception to Section 230 for speech promoting “sex trafficking,” isn’t just your ordinary incursion on Internet freedom. It comes with a body count [Mike Masnick, Techdirt; related, Violet Blue, Engadget]
- If they’re farming, don’t you be filming: John Stossel on ag-gag laws [Reason video and story, earlier]
- Turkish economist “Snatched at Night, Questioned for ‘Insulting’ Erdogan” [Asli Kandemir and Taylan Bilgic, Bloomberg News] “Croatian journalists stage protest against abusive lawsuits” [IFEX]
- SCOTUS has made clear that First Amendment generally bans government from “retaliat[ing] against a contractor… for the exercise of rights of political association.” That should doom Los Angeles ordinance requiring contractors to disclose ties to National Rifle Association (NRA) [Eugene Volokh]
- “How Regulation Cripples Online Political Speech” [Cato Daily Podcast with attorney Allen Dickerson with the Institute for Free Speech; related on unconstitutional Maryland law] License to chill: New Jersey bill would require disclosure of donors involved in “providing political information on any candidate or public question, legislation, or regulation” [Emily Kelchen, Federalist Society]
- Alabama publicity rights law trips up documentary series with focus on deceased man [Timothy Geigner, TechDirt]
- “Libel Case Can’t Be Litigated with the Alleged Libel Sealed, Says Federal Court” [Volokh]
- “Why Is the Fight for Free Speech Led by the Psychologists?” [Scholar’s Stage] From last year, another review of Keith Whittington’s book on academia, Speak Freely [James Stoner; earlier here, here]
H.R. 1, the political regulation omnibus bill, contains “provisions that unconstitutionally infringe the freedoms of speech and association,” and which “will have the effect of harming our public discourse by silencing necessary voices that would otherwise speak out about the public issues of the day.” That’s not just my opinion; it’s the view of the American Civil Liberties Union, expressed in this March 1 letter (more). For example, the bill would apply speech-chilling new restrictions to issue ads that mention individual lawmakers.
The House of Representatives nonetheless voted on Friday along party lines to pass the bill, which was sponsored by Rep. John Sarbanes (D-MD). For now, it has no prospect of passage in the Senate.
The issues raised in the ACLU letter aside, H.R. 1 contains many other provisions that likely are unconstitutional, unwise, or both. On gerrymandering, for example, an issue on which the Constitution does grant Congress a power to prescribe standards which I’ve argued it should consider using more vigorously, the bill takes the heavy-handed approach of requiring all states to create a commission of a certain format. That would likely run into the Supreme Court’s doctrine against federal “commandeering” of state government resources.
More criticism: Brad Smith on the bill’s restrictions on discussion and coordination of expenditures on speech; Ilya Shapiro and Nathan Harvey (“If ever adopted, [HR1] would give power to one slice of Washington’s elite at the expense of American democracy’s carefully crafted checks and balances”); David A. French (“At its essence, the bill federalizes control over elections to an unprecedented scale, expands government power over political speech, mandates increased disclosures of private citizens’ personal information (down to name and address), places conditions on citizen contact with legislators that inhibits citizens’ freedom of expression, and then places enforcement of most of these measures in the hands of a revamped Federal Election Commission that is far more responsive to presidential influence.”) And: Cato Daily Podcast with Caleb Brown and Luke Wachob.
Last year following the Russian Facebook scandal the Maryland legislature passed a bill regulating newspapers (!) and other online ad platforms. Gov. Larry Hogan refused to sign it, citing First Amendment concerns. Now a federal court has agreed and blocked the law’s enforcement as an unconstitutional infringement on the freedom of the press.
I write about the case at Cato. “Social media trickery is bad. Chipping away at First Amendment liberties to stop it is worse.”
A federal judge in June struck down Colorado’s distinctive law (earlier) under which any private person could file charges of campaign-finance violations. “That is unconstitutional, the court held, because there is ‘nothing reasonable about outsourcing the enforcement of laws with teeth of monetary penalties to anyone who believes that those laws have been violated.'” The Institute for Justice had represented “Strasburg resident Tammy Holland, [who] challenged the system after she was twice sued by members of her local school board for running newspaper ads urging voters to educate themselves about school-board candidates. Even though Holland was ultimately cleared of any wrongdoing, the lawsuits dragged on for months and cost thousands of dollars in legal fees.” [Institute for Justice press release] Following the ruling, the state quickly moved to institute a new process under which complaints will be vetted, and are subject to closer time limits. [Jesse Paul, Denver Post]
Attorney and Denver Post columnist Mario Nicolais writes that at first he thought Colorado’s privately driven system worked well, until it developed into a vehicle for volume filings settled for cash:
…several groups began filing campaign finance complaints solely to line their own pockets and intimidate political opponents. These groups comb through campaign finance filings looking for any small errors and then exploit the complaint system for their own gain. The director for one of these groups, Matt Arnold, coined his work “political guerilla legal warfare (a.k.a. Lawfare).” …
… Because of the byzantine procedure through which Colorado’s campaign finance penalties compound and accrue on a daily basis, the potential fines threatened by the group regularly reached into the tens and hundreds of thousands of dollars. Even when the only errors involved a couple [of] omitted $3.00 transactions. Consequently, the group knew it could demand payments for $4,500 or $10,000. When defendants didn’t pay, the group threatened that “the beatings will continue until morale improves.”
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.”)
- 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]