Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘campaign regulation’

Facebook won’t set itself up as arbiter of campaign ads’ truth

Facebook has done the right thing by not committing to a promise to identify and block false campaign ads, despite political pressure to do so [John Samples, earlier] I don’t think many people have an especially high regard for Facebook’s authority as a guide to political truth. Instead I think the demand for such a promise was driven largely by groups and factions that expect to be good at bringing pressure on Facebook management in the contentious ban-wars that would be certain to result.

For a taste of how the label of “false” in political controversy can depend on ideological presumptions and contestable judgments, here’s Christopher Snowdon’s brisk review of the claim circulated toward the end of the U.K. election campaign that 88% of the Conservative ads (but, conveniently, none of the Labour ads) were dishonest.

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Free speech roundup, campaign and political speech edition

  • “New legislation aimed at curbing foreign influence in U.S. elections also appears to be aimed at curbing Americans’ influence in U.S. elections.” [Cato Daily Podcast with Caleb Brown and Scott Blackburn of the Institute for Free Speech on SHIELD Act]
  • “Everyone always talks about how much money there is in politics. This is the wrong framing. The right framing is… why is there so little money in politics?” [Scott Alexander]
  • Free speech advances other freedoms: “Frederick Douglass’s “Plea for Freedom of Speech in Boston”” [Law and Liberty, Kurt Lash introduction] The very idea of a gay rights organization once seemed unthinkable in America, and might have remained so “in the absence of a strong and particularly libertarian First Amendment.” [Dale Carpenter, SSRN and Volokh Conspiracy summary]
  • “That unlimited right to lobby the lawmakers who make decisions that affect your life, your family, and your fortune is one that Sen. Elizabeth Warren (D–Mass.) thinks American businesses should not have.” [Peter Suderman; Bradley Smith and Luke Wachob, NRO] A federal appeals court says an independent Missouri activist doesn’t have to register as a lobbyist to talk to lawmakers [Cato Daily Podcast with Caleb Brown and Zac Morgan of the Institute for Free Speech]
  • “Every Democrat in the Senate Supports a Constitutional Amendment That Would Radically Curtail Freedom of Speech” [Jacob Sullum] Same bunch “Still Fundraising Off Citizens United, Still Wrong About What It Means” [Elizabeth Nolan Brown]
  • “Essentially, L.A. has passed a law saying people with one interest in a decision by the council can support candidates, but the other side can’t.” [Christian Britschgi, Reason on city’s ban on contributions by developer but not anti-development interests]

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Appeals court strikes down Maryland law regulating online political ads

I’m in the Baltimore Sun discussing a bad Maryland law passed in response to the furor over Russian trolling on social media. I wrote about it earlier when a federal district court struck the law down, and now a Fourth Circuit panel, in an opinion by Judge J. Harvie Wilkinson, has agreed that it is unconstitutional. Excerpt:

Exposing foreign governments’ meddling in U.S. politics is a worthy goal. Infringing on First Amendment freedoms is no way to go about it….

[After the law passed] Google immediately stopped hosting political ads in Maryland, a step particularly unhelpful to newcomer candidates, for whom advertising may be one of the few effective ways to boost name recognition. Other platforms, including some Maryland newspapers, also faced a tough position as the effective date of the law drew near. Rather than publish disclosures that might expose to competitors’ eyes confidential information about their ad rates and viewer reach, they might prefer just to immunize themselves by turning down political and issue ads in the future as a category.

Whole thing here.

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Which country restricts speech about climate change?

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]

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Social media as public pillory for campaign donations

“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!”).

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Free speech roundup

  • 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]

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Free speech roundup

  • 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]

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H.R. 1, political omnibus bill, passes House

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.

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Court: Maryland law regulating newspapers and social media flunks First Amendment

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.”

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Judge strikes down abuse-prone Colorado campaign finance law

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.”

More: Corey Hutchins, Colorado Independent 2016.

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