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campaign regulation

Much more than Citizens United

by Walter Olson on September 11, 2014

This week forty-eight senators are seeking to amend the Bill of Rights so as to give the government more power to control campaign speech. While some advocates pretend that the effect of the amendment would “only” be to overturn the Supreme Court’s decision in Citizens United, it would actually go a good bit farther than that. [Jacob Sullum, Reason; George Will; Trevor Burrus at Forbes ("political stunt," yet "terrifying"); related, David Boaz]

Concur: ACLU. Update: measure fails.

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For those of you following the politicized Wisconsin John Doe prosecution — which basically is premised on the idea that even issue advocacy is criminal if coordinated among the wrong people — this report from veteran legal analyst Stuart Taylor, Jr. is pretty amazing. [Legal NewsLine, my two cents from May, more]

More: Ann Althouse parses the response of John Chisholm’s lawyer.

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Among its other duties, the Federal Election Commission hands out — under conditions that may involve some discretion — hall passes giving permission for political candidates to publish books without legal hassle. [Providence Journal editorial] Last fall, in a (highly recommended) Yale Law Journal piece, Stanford law professor and former appeals judge Michael McConnell proposed that the Supreme Court’s much-demonized Citizens United decision would have rested on firmer ground had the Court characterized it as a free press rather than a free speech ruling; the case arose from a complaint against the makers of a documentary critical of Hillary Clinton.

Free speech roundup

by Walter Olson on July 7, 2014

  • Why are PEN and Index on Censorship luminaries supporting Hacked Off press control campaign in UK? [Brendan O'Neill]
  • Religious offense, hate speech and blasphemy: meet India’s self-appointed “Ban Man” [WaPo]
  • “Like a free press? Thank corporate personhood.” [Dylan Matthews, Vox]
  • Participant’s memoir: “spontaneous” mob violence against Danish cartoons was anything but [Lars Hvidberg, Freedom House]
  • Floyd Abrams testifies at Senate hearing on proposed constitutional amendments to curtail First Amendment for purposes of limiting campaign speech [Volokh]
  • Ruling: Pennsylvania high court judge can proceed with libel suit against Philadelphia newspapers [Philadelphia mag, Inquirer]
  • Missouri gun activist ordered to remove material from internet about police encounter wins settlement [Volokh, earlier]

The Supreme Court unanimously ruled this morning in Susan B. Anthony List v. Driehaus that a lower court challenge can proceed against Ohio’s law purporting to ban untruthful campaign speech. [decision, SCOTUSBlog, earlier Overlawyered coverage] The ruling was widely expected: “not a single amicus brief was filed on behalf of the state of Ohio, and even liberal groups conceded that allowing the state to arbitrate truth or falsity in political campaigns was troubling. During oral argument, the Justices seemed profoundly skeptical of the law’s underlying constitutionality.” [MSNBC]

The Court did not decide the First Amendment merits. Its ruling instead turns on the cluster of issues relating to standing: was there injury in fact from the law sufficient to support a challenge even though the original complaint had been dropped? While the two wings of the Court often divide on standing, they united in taking an expansive view this time. Here and there Justice Thomas’s opinion for the 9-0 Court does brush up against the underlying First Amendment problem of the chilling of speech, which will now move front and center as the lower court again takes up the case. A passage of particular interest from pp. 15-16 (footnotes omitted):

As the Ohio Attorney General himself notes, the “practical effect” of the Ohio false statement scheme is “to permit a private complainant . . . to gain a campaign advantage without ever having to prove the falsity of a statement.” “[C]omplainants may time their submissions to achieve maximum disruption of their political opponents while calculating that an ultimate decision on the merits will be deferred until after the relevant election.” Moreover, the target of a false statement complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days leading up to an election.

Here’s the entertaining and hilarious amicus brief (what a concept) filed by my Cato colleagues Trevor Burrus, Ilya Shapiro, and Gabriel Latner on behalf of humorist and Cato fellow P.J. O’Rourke (who explains his involvement; more from Ilya and Trevor). And Ilya has a reaction to the opinion at Cato at Liberty (“Chilling speech is no laughing matter… today was a banner morning for free speech and judicial engagement.”)

Free speech roundup

by Walter Olson on June 6, 2014

  • “Tenured Wisconsin Prof Sues Former Student Over Online Comments on Her Teaching” [Caron/TaxProf]
  • Recent Paul Alan Levy profile: “The web bully’s worst enemy” [Washingtonian] HHS signals it won’t pursue case against blogger [Levy, earlier] Arizona Yelp case angle [Scott Greenfield]
  • Get your ideas out of town: threats against hotel “have escalated to include death threats, physical violence against our staff and other guests” [Deadline Detroit; "men's rights movement" conference]
  • UK police investigate Baptist church after “burn in Hell” sign reported as “hate incident” [Secular Right]
  • Please don’t give him ideas: “Should it be against the law to criticize Harry Reid?” [Trevor Burrus, Boston Herald]
  • “MAP: The places where blasphemy could get you punished” [Washington Post]
  • Only three states – Wisconsin, Michigan, and Kansas — have laws inviting vengeful secret John Doe probes [Ilya Shapiro, earlier]

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George Will on why you may be out of luck if you’re the thirteenth donor in Minnesota. [syndicated/Owatonna, Minn., People's Press] In a different sense, however, campaign finance law can be seen as quite calculated as opposed to arbitrary:

Eugene McCarthy, a Democrat who represented Minnesota in the U.S. Senate from 1959 to 1971, said that in Washington anything said three times is deemed a fact. It is constantly said that today’s campaign regulations are “post-Watergate” reforms. Many were indeed written after the Nixon-era scandals. But the push for more government regulation of political speech began because Democrats were dismayed by what McCarthy accomplished [in challenging incumbent President Lyndon Johnson] in 1968.

The syndicated columnist praises Judge Rudolph Randa’s

remarkably emphatic ruling against an especially egregious example of Democrats using government power to suppress conservatives’ political speech.

Wisconsin’s sordid episode began, appropriately, with a sound of tyranny — fists pounding on the doors of private citizens in pre-dawn raids. While sheriff’s deputies used floodlights to illuminate the citizens’ homes, armed raiders seized documents, computers, cellphones and other devices.

Earlier here, here, etc.

And two Republican Wisconsin lawmakers are calling for a thorough review into the activities of the state Government Accountability Board, which “oversees Wisconsin campaign and election laws,” and whose contracted investigator, Dean Nickel, is reported to have played a role in setting in motion the process which resulted in the investigation of dozens of conservative organizations. [M.D. Kittle, Wisconsin Reporter/Watchdog.org] More: Milwaukee Federalist Society chapter roundup of coverage.

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A federal judge has quashed the stunningly abusive “John Doe” proceedings that had resulted in midnight raids on the homes of leading conservative activists across the state. I’ve got more in a new Cato post; fuller coverage at the Milwaukee Journal Sentinel, Watchdog.org (and series), and the decision itself is here. Earlier coverage here, here, and here. I conclude:

The citizens of Wisconsin must now demand a full accounting of how these raids could have happened. They should also insist on changes in state law, in particular the “John Doe” law, aimed at ensuring that nothing like them ever happens again.

Update: Seventh Circuit panel stays ruling pending appeal.

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Free speech roundup

by Walter Olson on April 14, 2014

  • “Money spent trying to spread a political message is speech, whether you like the message or not.” [Michael Kinsley on McCutcheon v. FEC, earlier]
  • “Letter: Ken Avidor on Being Silenced By a Defamation Suit” [Romenesko]
  • “Canada’s first Twitter harassment trial has taken a strange twist.” [Christie Blatchford, National Post]
  • In union leader’s defamation suit, Philadelphia court orders anonymous commenter unmasked [CBS Philly]
  • New Jersey ruling letting parents be sued over kids’ Facebook posts will chill speech [Hans Bader/CEI, earlier]
  • More dispatches from Michael Mann-Mark Steyn litigation showdown [Steyn, Charles Cooke] Bonus: Steyn on Andrew Bolt case in Australia and on Nevada protests’ “First Amendment Area” (“The ‘First Amendment Area’ is supposed to be something called ‘the United States’.”)
  • “True-crime author Ann Rule’s suit against Seattle Weekly tossed” [KING]

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Laws requiring campaign donation disclosure can reinforce conformist pressures, notes my colleague Ilya Shapiro on the episode of the tech CEO who stepped down after an outcry over his donation to California’s Prop 8 campaign a few years ago. [Forbes] On the wider significance of the episode (not mostly one of law or regulation, since the government did not and in my view should not get involved either way), I recommend Conor Friedersdorf’s careful analysis in the Atlantic.

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“…Yet”. Daniel Fisher explains yesterday’s 5-4 decision by the Supreme Court in McCutcheon v. FEC, which may be more significant as a clue to the direction of future Court thinking on campaign finance and the First Amendment as for its actual direct effect. Cato submitted an amicus brief on the side that prevailed, and my colleagues Trevor Burrus and Ilya Shapiro have flash reactions (earlier). More: Ilya Shapiro now has a longer treatment out at SCOTUSBlog.

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Trevor Burrus on the serious side of the case that elicited Cato’s humorous amicus brief the other day [Forbes]:

Susan B. Anthony List v. Driehaus… will be argued [before the Supreme Court] in April. The case is a challenge to Ohio’s bizarre statute prohibiting knowingly or recklessly making “false” statements about a political candidate or ballot initiative. In other words, the Ohio Election Commission (OEC) essentially runs a ministry of truth to which any citizen can submit a complaint. Amazingly, twenty other states have such laws.

Laws against lying in political speech are not administered by disinterested truth seekers, but by people with their own political convictions. They chill large amounts of truthful speech and deprive the public of hearing a robust debate on the issues. And, as we will see, they are used by political opponents to turn campaigning into litigation.

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It’s actually on a serious subject: can a state (Ohio) purport to ban false, exaggerated or “truthy” speech about candidates, or does that impermissibly chill speech protected by the Constitution’s First Amendment? My colleagues Ilya Shapiro, Trevor Burrus and Gabriel Latner co-authored it on behalf of political humorist/Cato fellow P.J. O’Rourke in the pending SCOTUS case of Susan B. Anthony List v. Driehaus. Read it here, alongside Ilya Shapiro’s summary, and here’s David Lat of Above the Law calling it the “Best Amicus Brief Ever.

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  • SCOTUS to hear case of Susan B. Anthony List v. Driehaus, First Amendment challenge to state laws regulating truth of political speech [IJ/Cato amicus cert brief]
  • Groups of law professors file amicus briefs in Halliburton Co. v. Erica P. John Fund, Inc. arguing that retreat from “fraud on the market” theory is consistent with modern scholarship on capital market efficiency [John Elwood] and sound statutory construction [Elwood, Bainbridge]
  • Behind the Michigan affirmative action plan in Schuette, including colorful background of litigant BAMN (“By Any Means Necessary”) [Gail Heriot, Federalist Society "Engage"]
  • Court dismisses Mulhall v. UNITE HERE (challenge to employer cooperation agreement with union as “thing of value”) as improvidently granted [Jack Goldsmith, On Labor, earlier]
  • Affordable Care Act saga has taken toll on rule of law [Timothy and Christina Sandefur, Regulation]
  • Lol-worthy new Twitter account, @clickbaitSCOTUS, with content like “The nine words no appellate advocate wants to read” [re: Madigan v. Levin]
  • Drug War vs. Constitution at Supreme Court, 1928: Drug War won by only one vote and you might not predict who wrote the most impassioned dissent [my Cato post]

Details are all over; D’Souza, a well-known conservative commentator, is the author of a book criticizing President Obama in particularly harsh terms. Here’s what happened after a big-league trial lawyer got caught donating in others’ names to John Edwards in 2004 (“slap on wrist“). More: Ken White, Popehat; Ann Althouse.

Further: Alison Frankel at Reuters on how laundering/straw donor charges are brought “surprisingly frequently” with less than clear patterns of who gets off with civil settlements and who gets indicted (& thanks for cite).

And more: I didn’t do as good a job of explaining the link to our 2006 post as I might, and some readers have misinterpreted it. As reported there, the John Edwards campaign paid only a $9,500 civil fine for accepting the illegal contributions. The lawyer and law firm that arranged the donations paid a larger fine of $50,000, several times the size of the offending contributions, in a civil (not criminal) penalty.

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Free speech roundup

by Walter Olson on November 7, 2013

  • Arizona water utility sues customer over criticism [Popehat, which also has a free-speech-themed Blawg Review tribute and the year in blasphemy law]
  • Harvey Silverglate, “The Slow Death of Free Speech at Harvard” [Minding the Campus] Cato’s Free Speech Week coverage includes video of recent Jonathan Rauch panel [Tim Lynch]
  • Arrest warrant issued after Connecticut man tells Facebook readers he plans to take toy guns into school to prove point [Volokh]
  • In Florida, it’s illegal for two or more people to join together and spend more than $500 on a state ballot issue [Ilya Shapiro; Jacob Sullum on other grassroots-activist chill effects] Brad Smith on the fight at the Supreme Court between Shaun McCutcheon and the FEC [WSJ]
  • “Florida Condo Developer Sues Residents Over Website” [IJ]
  • Lawmaker to introduce anti-SLAPP bill to curb vexatious plaintiffs in Pennsylvania, and no state needs it more [Philly Law Blog; cf. Michigan which also could use a hand]
  • Will measures to criminalize revenge porn erode Section 230, the provision that shelters online media operators from liability for user-added content? [Mark Bennett, Scott Greenfield] At European Court for Human Rights, notice-and-takedown policy not enough to insulate Estonian website from liability for racist user comments [Stanford CIS]

Free speech roundup

by Walter Olson on October 3, 2013

  • University of Montana professors who refuse Title IX training to be reported to federal government [FIRE, more, Missoulian] Professor yanked from public-university classroom over offensive out-of-class tweet [Popehat, Peter Bonilla/FIRE]
  • Preacher/historical fantasist/horrible human being Scott Lively has probably accomplished more actual evil in life than the picketers of the Westboro Baptist Church, yet it raises disturbing First Amendment questions to let him be sued in U.S. court for having urged foreign governments to be more oppressive [NBC News]
  • Speaking of wacky preachers, Florida sheriff says Terry Jones arrested for unlawful fuel transport and open gun carry, not because anyone disagreed with his speech [Orlando Sentinel, Volokh]
  • Critical speech annoys elected officials and that’s one reason we keep having to fight about campaign regulation [Barton Hinkle, Brad Smith on McCutcheon case, Ilya Shapiro on Susan B. Anthony List v. Driehaus]
  • Minnesota: “Ban on ‘Advis[ing or] Encourag[ing] … Another’ to Commit Suicide Violates First Amendment” [Eugene Volokh] Pennsylvania: “Crime to ‘Disparag[e]‘ an Under-18-Year-Old ‘With Intent to Harass’?” [same] Liking Facebook page presumptively protected speech [same] Veto override fails, so Missouri won’t enact proposed ban on publishing names of gun owners or concealed carry permit holders [same, followup]
  • Danish-Iranian artist convicted of “racism” after critical comments re: Muslim men [Copenhagen Post via @ClaudiaHajian]

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