October 10, 2023

In the News

Kansas Reflector: Conservative think tank argues Kansas law defining PACs ‘unquestionably’ unconstitutional

By Tim Carpenter

.....A conservative campaign-finance reform organization involved in a key federal court decision leading to creation of super PACs urged the Kansas Legislature to overhaul the state’s “unconstitutional” definition of political action committee and to end regulation of political advocacy groups raising or spending less than $5,000 annually.

Bradley Smith, representing the Institute for Free Speech in Washington, D.C., told the House and Senate elections committee that Kansas should allow unlimited donations to political parties and index to inflation all contribution limits in state law. He recommended Kansas remove disclosure requirements from modest donors and to generally error on the side of free-speech rights when shaping campaign laws or regulations.

“The government should not and cannot constrain the right of the American people to discuss candidates and policies lightly,” Smith said. “Whether through deliberate choice or bureaucratic inertia, many provisions of federal and state campaign finance laws have drifted away from this basic purpose. While better than many states, Kansas is no exception.”

Smith said a Kansas law requiring disclosure of donors giving $50 or more made people reluctant to take part in political campaigns and fed a “cancel culture” mentality resulting in harrassment of contributors.

CentralMaine.com: Free speech or uncivil discourse? Maine association advises tamping down on public comments at school board meetings

By Emily Duggan, Kennebec Journal and Christopher Williams, Sun Journal

.....Limiting public comments comes as a statewide school management association is advancing a policy that recommends districts restrict speech at school board meetings, specifically aimed to quell any speech, complaints or praise, involving specific staff or students…

The fundamental point of the First Amendment is to allow people to criticize the government and people who work for it “because what they’re doing affects you, and you’re paying their salary,” said Brett R. Nolan, a senior attorney with the Institute for Free Speech, a nonprofit advocacy group based in Washington, D.C.

“The thing I think that you’re seeing with schools is that these are government services that directly affect people’s kids, and obviously that brings a lot of emotion to it, but it brings a lot of emotion to it because it’s really important,” Nolan said. “These are the government institutions that are interacting with people’s kids every day for long periods of time.

“If they’re government officials, the decisions they make have to be subject to criticism.”

Philanthropy Roundtable: Diverse Groups Ask Congress to Support Donor Privacy

By Patterson Sheehan

.....Many organizations responded to the RFI by calling for the IRS to be relieved of its responsibilities in defining political activity, rather than give it more authority in this area. In the words of the National Taxpayers Union Foundation’s Tyler Martinez, “The IRS is ill-equipped to navigate these rough constitutional waters.” He argues the IRS functions primarily as a tax agency and lacks both the necessary expertise and organizational structure to effectively oversee political activities, all while traversing the complex terrain of First Amendment rights and donor privacy concerns. Other groups, including People United for Privacy, say existing campaign finance law “already includes a regulatory scheme to address foreign nationals making contributions to affect U.S. elections, whether directly or indirectly.” 

Sadly, the IRS has already proven its inability to keep confidential information private. The Institute for Free Speech details many such shortcomings in its RFI response, which says granting the IRS access to more donor names and addresses only increases the risk of inadvertent or deliberate donor disclosure – a direct violation of First Amendment donor privacy laws. After all, donor privacy remains paramount as donors continue to face “damaging consequences from disclosure, including harassment, adverse government action and reprisals by an employer, neighbor or community member.”  

The Courts

Carolina Journal: Judicial standards group moves to dismiss Earls’ federal First Amendment suit

.....The North Carolina Judicial Standards Commission is asking a federal court to dismiss state Supreme Court Justice Anita Earls’ First Amendment lawsuit against the group. Paperwork filed Friday also asks the court to reject Earls’ request for a preliminary injunction.

Earls’ Aug. 29 lawsuit argued that a commission investigation into her published comments threatened to “chill” the justice’s speech about matters of public concern.

“The Complaint accuses the Commission of ‘target[ing]’ Plaintiff in an attempt to silence Plaintiff’s political speech,” according to a brief supporting the dismissal motion filed Friday in US District Court. “Far from singling out Plaintiff for investigation, however, the Commission regularly considers whether certain speech by judges is consistent with the Code, both through confidential advisory opinions and confidential investigations. The Commission has offered consistent guidance on this topic to judges for years, advising that judges have broad rights in commenting on issues of the day, but that no judge should make unsupported accusations that a colleague is making decisions based on prejudices or biases, rather than the law and facts.”

Online Speech Platforms

Knight First Amendment Institute: Jawboned

By Katie Harbath and Matt Perault

.....We were jawboned. Repeatedly. Routinely.

We both worked on the public policy team at Facebook: Katie as the head of the politics and elections team, and Matt as the head of the policy development team. We were there for roughly a decade: Katie from 2011 until 2021 and Matt from 2011 until 2019. In our roles, we met regularly with government officials in the United States and internationally. We met regularly with company executives, often in decisional meetings to determine the best course of action for addressing a challenge.

During our tenure at Facebook, was incessant. It increased in prevalence as the U.S. government stumbled in its attempts to impose more stringent regulations on the tech sector, despite escalating frustrations with social media generally and Facebook in particular. That gap—between the anger at the industry and the inability to take punitive or preventative action against it—was filled by jawboning.

Washington Post: Amazon’s Alexa has been claiming the 2020 election was stolen

By Cat Zakrzewski

.....Amid concerns the rise of artificial intelligence will supercharge the spread of misinformation comes a wild fabrication from a more prosaic source: Amazon’s Alexa, which declared that the 2020 presidential election was stolen.

Wired: The Israel-Hamas War Is Drowning X in Disinformation

By David Gilbert

.....In the wake of Hamas’ deadly attacks on Israel this weekend—and the Israeli military’s response—journalists, researchers, open source intelligence (OSINT) experts, and fact-checkers rushed to verify the deluge of raw video footage and images being shared online by people on the ground. But users of X (formerly Twitter) seeking information on the conflict faced a flood of disinformation.

While all major world events are now accompanied almost instantly by a deluge of disinformation aimed at controlling the narrative, the scale and speed at which disinformation was being seeded about the Israel-Hamas conflict is unprecedented—particularly on X.

Candidates and Campaigns

Election Law Blog: ELB Book Corner: Michael Kang: “Free to Judge: The Power of Campaign Money in Judicial Elections”

By Michael Kang

.....Thanks to Rick Hasen for the chance to introduce my new book Free to Judge with Joanna Shepherd. Listserv members may know my work in election law better than my empirical work on judicial behavior, but Joanna and I have spent the last decade studying the relationship among judicial campaign finance, judicial elections, and state supreme court decisions. Roughly 9 out of 10 state judges face some sort of judicial election either to reach office or keep it, and to paraphrase Justice Scalia, judicial elections mean judicial campaigning, which means judicial campaign finance. In our book, we document how judicial campaign finance influences and, we argue, actually biases state supreme court decision-making.  

The States

Albuquerque Journal: NM Supreme Court orders foundation records be made public

By Ryan Boetel 

.....Records kept by foundations that fundraise and invest for New Mexico's public universities will be public records brd on a court order issued this week, attorneys involved in the case said.

The New Mexico Supreme Court on Wednesday issued an order that lets stand previous decisions that said certain records held by the UNM Foundation and the Lobo Club — nonprofit organizations that raise money for the University of New Mexico and its athletics department — are not exempt from state Inspection of Public Records Act requests. 

Reason: Performing Charity Is a First Amendment Right

By C.J. Ciaramella

.....In July, Phillip Picone, a Houston activist, stood before a jury of his peers, charged with the heinous crime of feeding the needy.

Picone is one of several activists affiliated with Food Not Bombs (FNB), a volunteer group with chapters worldwide. Houston police have repeatedly cited FNB activists for distributing free food outside the city's downtown public library, based on a 2012 city ordinance restricting charitable food services. By the time Picone appeared in Houston Municipal Court, FNB members had received 45 tickets at $254 each, for a total of $11,430 in fines.

Houston is part of a national trend. The legal farce in that city is a particularly potent example of an ongoing tug-of-war that pits public order against the First Amendment right to perform charity as a form of expression.