FAN 179 (First Amendment News) Does existing First Amendment law endanger our national security and sovereignty? Prof. Hasen says yes

The [Muller] indictment . . . described how fraudulent Russian accounts on Twitter tried to push real Americans into action. The indictment said the fake Twitter account @March_for_Trump had organized political rallies for Mr. Trump in New York before the election, including a “March for Trump” rally on June 25, 2016, and a “Down With Hillary” gathering on July 23, 2016. — NYT, Feb. 19, 2018

The Muller indictment gives a roadmap for foreign nations to interfere in our elections in ways that don’t violate federal law as the Supreme Court has narrowed it. — Richard Hasen

Below is a short piece I invited Professor Richard Hasen to write for FAN. Beyond his Election Law Blog and many publications, Hasen is also the author of the soon-to-be-released book entitled The Justice of Contradictions: Antonin Scalia and the Politics of Disruption (Yale University Press, March 20, 2018). I will interview Professor Hasen concerning his new book on Tuesday, March 6th, at 6:00 pm at the law offices of Ballard Spahr in Washington, D.C. (E-mail if you would like to attend.) 

* * * * 

Last week, special counsel Robert Mueller secured a grand jury indictment of 13 Russian nationals for interfering with the 2016 U.S. presidential elections by, among other things, paying for political advertisements promoting Donald Trump for President and opposing Hillary Clinton. The claims were based in part on federal law barring most foreign nationals from spending money to influence U.S elections. But thanks to the First Amendment, some of the activity described in the indictment may not be illegal. More importantly, going forward, the indictment gives a roadmap for foreign nations to interfere in our elections in ways that don’t violate federal law as the Supreme Court has narrowed it. Indeed, if Congress acts to curb future foreign interference, the Court could well face the question whether national security and sovereignty concerns should override the current line it has drawn in campaign finance law between express advocacy and issue advocacy.

Professor Richard Hasen

As I explain in a forthcoming article in the First Amendment Law Review, “Cheap Speech and What It Has Done (to American Democracy),” federal law bars foreign nationals, including foreign governments, from making expenditures, independent expenditures, and electioneering communications in connection with a Federal, State or local election. However, it is at best uncertain whether independent online ads that do not expressly advocate the election or defeat of candidates are covered by the foreign expenditure ban.

For example, one of the ads targeted in the Mueller indictment read: “Hillary is a Satan,” and her crimes and lies had proved how evil she is.” Others promoted and opposed Black Lives Matter issues.  Neither likely violated the ban on foreign campaign spending. Foreign political advertising like the Black Lives Matter ads neither mentioning nor showing a candidate for office, likely would not be considered an election ad under current law, which does not cover pure issue advocacy even if intended to influence election outcomes. And the Hillary-Satan ads, though mentioning a candidate, would not be illegal “electioneering communications” under the McCain-Feingold campaign finance law, because they were run on digital platforms rather than on TV, radio, satellite or cable. And they do not contain “express advocacy” because they never urge a vote against Clinton.

Deputy Attorney General Rod Rosenstein announcing release of Muller indictments

Proposed federal legislation such as the “Honest Ads Act,” would extend rules barring foreign spending on television or radio “electioneering communications” to communications via digital outlets like Facebook. That could cover Hillary-Satan ads but not Black Lives Matter ads paid for foreign sources.

If Congress passed a statute purporting to make illegal all or some of the activity Russians engaged in during the 2016 election, such a statute would likely run into First Amendment resistance. After the Supreme Court decided Citizens United v. Federal Election Commission, a 2010 case holding that corporations have a First Amendment right to spend unlimited sums independently to support or oppose candidates for public office, the Court summarily affirmed a lower court decision in Bluman v. Federal Election Commission. Bluman upheld a federal law barring foreign nationals—in the case of Benjamin Bluman, a foreign national working in New York on a temporary work visa—from spending even fifty cents to print and distribute flyers expressly advocating the reelection of President Obama.

Bluman seems to indicate that, despite tensions with the holding in Citizens United that the identity of the speaker does not matter for First Amendment purposes, the government has a compelling interest in banning foreign spending in our elections. “It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.”

Vladimir Putin

But the Bluman court, in an opinion by D.C. Circuit judge Brett Kavanaugh, narrowly construed the foreign spending ban to cover only express advocacy and not issue advocacy. “This statute, as we interpret it, does not bar foreign nationals from issue advocacy—that is, speech that does not expressly advocate the election or defeat of a specific candidate.”

While this interpretation is not free from doubt—the statute is written broadly to cover all expenditures and not just independent expenditures—it seems like the kind of interpretation likely to be favored by the current Supreme Court. Indeed, it is not clear that the courts would accept a more clearly written foreign spending ban going beyond express advocacy and electioneering communications to cover foreign-funded ads meant to stir social unrest without using candidates’ names or likenesses.

These ads should be covered because they constitute a foreign government’s interference with American self-government. The First Amendment should not stand in the way of protecting our national security and sovereignty.


Cert. Petition filed in Commercial Speech Case

The case is Nationwide Biweekly Administration, Inc., et al v. Perez (9th Cir. opinion here).  The issues presented in the case are:

  1. Whether the state demonstrates a governmental interest sufficient to compel a disclosure or disclaimer simply by positing the goal of preventing commercial speech from being misleading?
  2. Whether characterizing a regulation as imposing a “disclosure” rather than a “restriction” on commercial speech is alone sufficient to trigger less rigorous First Amendment scrutiny?
  3. Whether a compelled commercial disclosure that favors or disfavors a particular speaker requires heightened scrutiny?
  4. Whether a compelled disclosure may be considered purely factual, noncontroversial, and non- burdensome under Zauderer if it disadvantages the speaker’s message or favors incumbent competitors?

This is an excerpt from the cert. petition in the case:

“This case addresses the limits of state authority to dictate how commercial transactions must be described under the commercial speech doctrine. Over the past four decades, this Court has developed a body of law in which different levels of judicial scrutiny apply to restrictions on commercial speech as contrasted with compelled disclosures, but has not clearly explained when the different levels of scrutiny apply. The absence of clarity is most acute in the circumstances presented here, where a regulation might be classified either as a speech restriction or as compelled speech, and the circuit courts are divided on how to answer the questions presented.”

“Nationwide Biweekly Administration, Inc. services help mortgage holders pay off their loans more quickly and thereby save money through reduced interest charges. Its offer letters stated that Nationwide is not affiliated with, sponsored by, or approved by the incumbent lender, but that is not sufficient disclosure under California law. Under a statutory provision sponsored by the banking industry, if Nationwide mentions an existing lender’s name, account number, or mortgage amount, it must also state, in addition to the other disclosures, that its offer is “not authorized” by the current lender.”

“The Ninth Circuit applied the least rigorous level of judicial scrutiny to this requirement and held the First Amendment does not bar its enforcement. The decision implicates questions that have divided the circuits on the proper understanding of the commercial speech doctrine.”

Lawyers for Petitioners:

Cal. Law Banning Disclosure of Age of Actors Ruled Unconstitutional 

This from Deadline Hollywood: “A U.S. District Court judge has ruled that the State of California’s SAG-AFTRA-backed law making it illegal for the entertainment news site IMDbPro to publish actors’ ages is unconstitutional on First Amendment grounds.”

“A year ago this week, Judge Vince Chhabria granted IMDb an injunction to stop enforcement of AB 1687, which went into effect January 1, 2017. ‘It’s difficult to imagine how AB 1687 could not violate the First Amendment,’ he wrote at the time, adding that the government had not shown how the bill is “necessary” in achieving the goal of preventing age discrimination in Hollywood.”

“[Yesterday], in granting summary judgment in v. Xavier Bacerra, Chhabria wrote: ‘Even if California had shown that the law was passed after targeted efforts to eliminate discrimination in the entertainment industry had failed, the law is not narrowly tailored. For one, the law is underinclusive, in that it bans only one kind of speaker from disseminating age-related information, leaving all other sources of that information untouched. … Even looking just at, the law requires IMDb to take down some age-related information – that of the members of its subscription service who request its removal – but not the age-related information of those who don’t subscribe to IMDbPro, or who don’t ask to take their information down. The defendants have not shown that partially eliminating one source of age-related information will appreciably diminish the amount of age discrimination occurring in the entertainment industry.’ . . .”

Forthcoming Bollinger & Stone Book

Excerpt from Introduction

Columbia University President Lee Bollinger

“As suggested in our title, The Free Speech Century, this volume commemorates the 100th anniversary of the Supreme Court’s first decisions interpreting the First Amendment’s guarantee that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Over the past century, we have seen an extraordinary evolution in the ways in which the Court has given meaning to that guarantee. Through a series of false starts, shifting doctrines, and often controversial and surprising outcomes, the justices have struggled to fulfill the promise of that guarantee. In so doing, they have exemplified Justice Oliver Wendell Holmes’ insight in 1919 that “all life is an experiment” – including the constitutional guarantee of free speech.”

“To explore the past, present, and future of this First Amendment “experiment,” we have convened a group of truly extraordinary scholars to examine The Free Speech Century, and beyond. . . .”


Dialogue: Lee C. Bollinger & Geoffrey R. Stone

Part I: The Nature of First Amendment Jurisprudence

  • Vincent A. Blasi — Rights Skepticism and Majority Rule at the Birth of the Modern First Amendment
  • Frederick Schauer — Every Possible Use of Language?
  • Laura Weinrib — Rethinking the Myth of the Modern First Amendment
  • Heather K. Gerken — The Discursive Benefits of Structure: Federalism and the First Amendment

Part II: Major Critiques and Controversial Areas of First Amendment Jurisprudence

  • Floyd Abrams —  Citizens United: Predictions and Reality
  • Lawrence Lessig —  On the Legitimate Aim of Congressional Regulation of Political Speech: An Originalist View
  • Robert C. Post —  The Classic First Amendment Tradition Under Stress: Freedom of Speech and the  University
  • David A. Strauss — Keeping Secrets
  • Catharine A. MacKinnon — The First Amendment: An Equality Reading
  • Cass R. Sunstein — Does the Clear and Present Danger Test Survive Cost-Benefit Analysis?

Professor Geoffrey Stone

Part III: The International Implications of the First Amendment

  • Albie Sachs — Reflections on the Firstness of the First Amendment
  • Tom Ginsburg — Freedom of Expression Abroad: The State of Play
  • Sarah H. Cleveland — Hate Speech at Home and Abroad

Part IV: New Technologies and the First Amendment of the Future

  • Emily Bell — (forthcoming)
  • Monika Bickert — Defining the Boundaries of Free Speech on Social Media
  • Tim Wu — Is the First Amendment Obsolete?

Epilogue: Lee C. Bollinger & Geoffrey R. Stone

Coming Tomorrow: Cato panel on Minnesota Voters Alliance v. Mansky

Tomorrow at noon the Cato Institute will host a panel discussion on Minnesota Voters Alliance v. Mansky, a First Amendment case that will be argued before the Supreme Court on February 28.


  • Roger Pillon (Vice President for Legal Affairs, Cato Institute)


  • Wen Fa (attorney, Pacific Legal Foundation)
  • Ginger Anders (Partner, Munger, Tolles & Olso)
  • Trevor Burrus (Research Fellow, Cato Institute)

Location: Cato Institute’s Hayek Auditorium in Washington, D.C.

Live online feed: go here

Abrams Speaks at Savannah Book Festival

Earlier this month Floyd Abrams spoke at the 11th Annual Savannah Book Festival. 

He was there speaking on his latest book, The Soul of the First Amendment (2017)

 Related: Montclair Public Library: Floyd Abrams in conversation with Vince Blasi (Oct. 2017) (YouTube)

Recently Published Book

Forthcoming Scholarly Articles

  1. Dan L. Burk, Patents and the First Amendment, SSRN (Feb. 1, 2018)
  2. Martin Redish & Kristen McCall, Due Process, Free Expression, and the Administrative State, Northwestern Public Law Research Paper (Feb. 12, 2018)

New & Notable Blog Posts

News, Editorials, Op-Eds. & Blog Posts

Amy Howe, Argument preview: For the third time, justices take on union-fee issue, SCOTUSblog, Feb. 20, 2018

  1. Thomas Wheatley, President Trump And The Issue Of Free Speech, The Daily Caller, Feb. 20, 2018
  2. Alex Swoyer, Supreme Court to decide whether mandatory union dues violate First Amendment rights, Washington Times, Feb. 19, 2018
  3. Jeff McCall, America’s waning commitment to the promise of the First Amendment, The Hill, Feb. 16, 2018
  4. Stephanie Taub, First Amendment Protects Unpopular Views, Like Those Held by a Christian Baker, The Daily Signal, Feb. 16, 2018
  5. Anne O’Connor, The greedy abortion industry vilifies pro-life centers, The Hill, Feb. 15, 2018
  6. Joseph P. Williams, The Right’s First Amendment Push, US News & World Report, Feb. 12, 2018

Podcast on Ceballos Case

  • Over at Make No Law, Ken White explores the Garcetti v. Ceballos case, the results of which saddle government employees with a tough decision when reporting misconduct to their superiors.

Podcast: History of Free Speech in Ancient Rome

Second Amendment vs First & Fourth Amendment Rights

Our continued refusal to hear Second Amendment cases only enables this kind of defiance. We have not heard argument in a Second Amendment case for nearly eight years. . . . And we have not clarified the standard for assessing Second Amendment claims for almost 10. Meanwhile, in this Term alone, we have granted review in at least five cases involving the First Amendment and four cases involving the Fourth Amendment—even though our jurisprudence is much more developed for those rights. — Justice Thomas dissenting from a denial of cert in Silvester v. Becerra (Feb. 20, 2018)

2017-2018 Term: First Amendment Free Expression Cases

Cert. Granted

  1. National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
  2. Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
  3. Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
  4. Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
  5. Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)

Pending: Cert. Petitions 

  1. Nationwide Biweekly Administration, Inc., et al v. Perez
  2. CTIA v. City of Berkeley 
  3. Harris v. Cooper 
  4. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  5. Livingwell Medical Clinic, Inc. v. Becerra
  6. Berninger v. Federal Communications Commission

Review Denied

  1. Shepard v. Florida Judicial Qualifications Commission 
  2. Morris v. Texas (dismissed for want of jurisdiction)
  3. Connecticut v. Baccala
  4. Tobinick v. Novella
  5. Muccio v. Minnesota
  6. Elonis v. United States
  7. Final Exit Network, Inc. v. Minnesota 

Free-Speech Related Cases: Cert. Granted

  • Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)

Free-Speech Related Cases: Cert. Pending

  • Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States (1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)

Free-Speech Related Cases: Cert. Denied

Last Scheduled FAN # 178On Hate Speech — Dershowitz Review Draws Reply

Next Scheduled FAN # 180: Wednesday, February 29, 2018

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8 Responses

  1. Brett Bellmore says:

    I actually find Prof. Hasen a bit more scary than Russian trolls. If had the power to, he’d destroy our political liberties in a heartbeat, in the name of saving them.

  2. Joe says:

    Barring certain types of foreign involvement and other types of campaign regulations, which he backs up by citing the words and history behind the 1A as well as practical principles, will somehow “destroy” our political liberties.

    Hasen lacks such power. His proposals would tinker the existing policies in various respects such as allowing a certain amount of money to be spent up to a point. This might in various cases be wrong, but it will not “destroy” any less than traditional campaign limits back to the 19th Century at least (see, e.g., Zephyr Teachout’s analysis of lobbying restrictions; then again people on all sides have a selective concern for history) did.

    But, I appreciate others disagree, while not having that much fear about other things occurring now, including foreign money involved in elections that even under Citizens United might not be allowed.

    • Brett Bellmore says:

      I’m not just talking about Hasen’s proposals here, but what he’s said elsewhere. If he had his way, political speech in America by Americans would be much more subject to government regulation.

      He assumes that it would be good faith regulation. That’s a terrifyingly dangerous assumption to make.

      The legal precedents that get in the way of what he wants are holding back much worse than he advocates.

      • Joe says:

        I speak in general as well. His proposals would in practice do only so much — e.g., he proposals a relatively high limit for spending but would then draw the line at that. That might be wrong in your view, but its ultimate effect would be quite limited. Foreign interference of elections should concern us more.

  3. Boom! adiene says:

    In Boumediene v. Bush, the supreme court said that the U.S. Constitution applies to foreign nationals–presumably that includes the first amendment. So anything you or I could say that would not count as “electioneering communications” would be OK for Putin to say also, right? If you can call Hillary “Satan”, so can Putin, right? If the NYT can release the Pentagon Papers, then Wikileaks can release Hillary’s e-mails, right?

    You can’t say that the fifth and sixth amendments apply to foreign nationals, but not the first amendment, which is necessary to assert one’s fifth and sixth amendment rights.

    • Brett Bellmore says:

      Right, and Mueller conspicuously only indicted the Russian ‘trolls’ for conventional crimes like visa fraud, identity theft, and money laundering. If they’d announced their intention to sow discord at the border, and done it under their own names without hiding the source of the money, they’d have been free and clear.

      Hasen here complains about the Russians’ speech, but he’s not complaining about anything he doesn’t want to be illegal if done by Americans. So it’s somewhat hypocritical to pretend this is about foreign interference in our elections.

      It’s about speech he doesn’t like.

    • Joe says:

      That ruling said that habeas rights apply to foreign nationals in U.S. custody, not that foreign nationals have equal rights to Americans in all respects, including in respect to money donated in our elections. Being in U.S. custody, at least, they have some basic due process rights. CUSTODY matters there.

      This is surely the case when they reside abroad — e.g., the Supreme Court said the 4A doesn’t apply when searches are done on Mexican soil. They specifically cited rights of “the people” here. Foreigners abroad are not “the people” as spelled out in the 1A. The complexities of the matter is touched upon in that opinion. The Supreme Court even upheld a limit on legal residents —

      As to the Pentagon Papers, for good or ill, a majority of the justices suggested that the NYT might be able to be prosecuted after publication for violating security laws. The basic problem there was a “prior restraint” and the President not having the authority to do what he did on his own.

      Now, maybe the Supreme Court in various cases didn’t go far enough here. But, blaming “Hasen” here is a bit silly and it is not merely about “speech he doesn’t like” either. The Constitution itself differentiates.

      • Brett Bellmore says:

        “including in respect to money donated in our elections.”

        The problem here is construing money spent independently on speech as a “donation”. The Russians did not, so far as the indictment laid out, make any donations. They just engaged in speech and publishing.