FAN 184 (First Amendment News) Institute for Free Speech releases free speech index on state campaign finance laws
The Institute for Free Speech has just released a 102-page report titled Free Speech Index – Grading the 50 States on Political Giving Freedom. The foreword to the report was written by Bradley A. Smith (Chairman and Founder) and David Keating (President). Below is a partial description of the report and an executive summary of it.
Each of the 50 states has its own collection of campaign finance laws and regulations limiting the freedoms of speech, assembly, and petition. Many of these state laws are poorly written, complex, or both. Despite the advances made in constitutional protections for speech over the last decade, our politics, and campaign finance in particular, remains more highly regulated than at any time prior to the 1970s, and in some important ways more highly regulated than ever. Far from a “wild west” with no rules, arcane campaign finance rules govern the minutiae not only of almost every campaign, but of what ordinary citizens and the groups they belong to can say, and how and when they can say it.
To assess the impact of such speech regulation, we created the Free Speech Index. In the future, we hope to publish similar ratings of state laws on other types of restrictions on political speech. This first installment measures the freedom of individuals, political parties, and groups to contribute to causes and candidates they support.
This installment of the Free Speech Index rates each state on how well it supports free speech rights in a core area of political participation: the rights of individuals and groups to contribute to and support the candidates and causes of their choice.
To assess each state in this area, we ranked the states on nineteen variables grouped into five categories:
- Individual Freedom (the ability of individuals to give to candidates, parties, and political committees, known informally as PACs);
- Party Freedom (the ability of political parties to give to or support their candidates);
- Group Freedom (the ability of PACs to give to candidates and parties);
- Inflation-Indexing Provisions; and
- Union and Corporate Freedom (the ability of unions and corporations to donate to candidate campaigns).
States earn points in each category, which are then weighted and combined to produce a total score from 100 to 0 and a letter grade, from A+ to F.
Because the states and legislative districts vary widely in population, contribution limits were compared based on population. For example, a $1,000 per election contribution limit in a New Hampshire State House district with a roughly 2,500 voting-eligible population is much less restrictive than a $1,000 per election South Carolina limit where the State House district has over ten times the number of voters. We also had to account for the wide variety of ways in which states write campaign limit laws. For a full explanation of the five categories and how the scores are computed, see the Methodology section.
Eleven states received an A+ or A grade. The top 11 rated states overall were: Alabama, Nebraska, Oregon, Utah, and Virginia (each tied for #1), Mississippi (#6), Iowa (#7), Indiana (#8), and North Dakota, Pennsylvania, and Texas (each tied for #9). These 11 states are diverse in size, population, geography, and politics. They include large states (Texas), less populated states (North Dakota), eastern states (Pennsylvania), western states (Utah), blue states (Oregon), and red states (Alabama).
The best overall grade, A+, went to Alabama, Nebraska, Oregon, Utah, and Virginia. These five states permit individuals, political parties, and PACs to contribute unlimited sums to the candidates, parties, and causes of their choice. These states also allow unlimited donations from unions and businesses to candidate campaigns. Because none of these states impose limits, all received the same top grade.
The five lowest scores belong to Kentucky, West Virginia, Alaska, Colorado, and Maryland. In the end, eleven states receive an F, a sad commentary on the widespread existence of stringent restrictions on political giving across the country.
States in the middle of the rankings all have their own specific shortcomings. For example, Illinois and Nevada rank 29th and 30th in the Index, respectively. Both receive a C- grade. Yet, their limits are polar opposites. Nevada allows individuals to give unlimited amounts to parties and political committees, but imposes low limits on contributions from parties to candidates and fails to adjust these limits for inflation. Illinois allows parties to provide unlimited support to their candidates, and its limits are adjusted for inflation, but individuals can only give small amounts to parties and PACs.
First Amendment gerrymandering case to be argued in SCOTUS tomorrow
Case: Benisek v. Lamone
Issues: (1) Whether the majority of the three-judge district court erred in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map; (2) whether the majority erred in holding that the Mt. Healthy City Board of Education v. Doyle burden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders; and (3) whether, regardless of the applicable legal standards, the majority erred in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014, or 2016.
- Michael Kimberly, Counsel of Record for Appellants
- Steven M. Sullivan, Maryland Solicitor General, Counsel of Record for Appellees
Select Amicus Briefs
- ACLU Amicus Brief
- Brennan Center for Justice at N.Y.U. School of Law, Amicus Brief
- State of Michigan & 12 Other States, Amicus Brief
- Richard Hasen, The Supreme Court Case That Could Transform Politics, Politico, March 26, 2018
- Richard Pildes, What is the First Amendment Theory of Partisan Gerrymandering?, Election Law Blog, March 25, 2018
The Costs of Denying Free Speech on Colleges Campuses — Attorneys’ Fees Awards
Too often the costs of denying free speech claims are lost sight of, especially when it is the government who is spending taxpayer dollars to defend patently unconstitutional actions. It would be in the public interest to give greater exposure to these matters and even have some running tally of all such awards involving public colleges. The case below is a recent example of this phenomenon.
Iowa State University’s effort to block a pro-marijuana student group from using the school’s trademarks on T-shirts has cost state taxpayers much. On March 21, 2018, Federal District Judge James E. Gritzner ordered the Defendants in Gerlich v. Leath to pay “the stipulated request for attorney fees in the amount of $570,233.55, [which] is within the range of fair and reasonable fees for the services provided in this matter.”
“Further, the Court concludes the stipulated request for costs in the amount of $27,974.62 is also fair and reasonable in the context of this litigation.”
Total Costs — Damages & Attorney Fees: With the fees for the appeal and the negotiated payments to the students, the total cost paid to the defendants and their attorneys by Iowa State University was $940,000.
→ This does not include the costs of the Iowa Attorney General’s office, which represented ISU administrators.
→ See Iowa State University – Stand Up For Speech Lawsuit, FIRE, March 2018
Excerpts from Judge Gritzner’s opinion:
“The professional stature and reputation of Mr. [Robert] Corn-Revere and Mr. [Michael] Giudicessi are both apparent to the Court and unchallenged by the Defendants. Indeed, it is Mr. Giudicessi’s skill and experience that Defendants utilized in arguing Plaintiffs cannot make the necessary showing that they could not obtain local counsel with the ability and the willingness to take on the case. Quite the contrary, Mr. Giudicessi is extremely able and qualified in the area, and took the case, albeit as local counsel. While Mr. Giudicessi’s credentials in the area of First Amendment litigation are beyond dispute, his substantial experience has been gained largely in representation of news organizations and media companies. The list of clients and representative cases clearly supports that conclusion.”
“Lead counsel, Mr. Corn-Revere, has similar generic credentials in the First Amendment area, but with a material distinction. He has been involved in a number of cases across the country representing First Amendment rights of students in the academic setting, and has written extensively on First Amendment issues. Thus, while both counsel were qualified to provide the necessary representation in the case at bar, Mr. Corn-Revere came to the case with substantially extended experience specifically applicable to the case. His expertise and command of the legal principles in the area were apparent to the Court in argument, and it is reasonable to conclude made a material contribution to the result.”
Did White House Staff Sign Away Their First Amendment Rights?
This from First Amendment Watch: “The Washington Post reports that senior White House staffers in President Trump’s administration were asked to sign long-term nondisclosure agreements which would prevent them from revealing confidential information. These agreements extended beyond the normal confidentiality obligations around classified information or attorney-client privilege and included fines if they were broken. What exactly is the law that would govern NDAs?”
“Heidi Kitrosser of the University of Minnesota told Reuters that ‘These NDAs strike me as clearly unconstitutional under the First Amendment’ because the First Amendment protects free speech from government restriction, and White House personnel are employed by the government not by President Trump. This is not absolute in all cases. In Garcetti v. Ceballos (2006), the U.S. Supreme Court ruled public employees can be fired or otherwise disciplined for speech connected to their jobs. Several scholars suggested that President Trump does not need NDAs at all – he can just fire employees who have divulged confidential information.” (video link here)
Upcoming Event: The First Amendment and Hate Speech
Date: Thursday, March 29, 2018, 5:30 PM
→ A reception will take place from 5:30 – 6:00 p.m. and the program will take place from 6:30 – 8:30 p.m.
Hosted by: The National Constitution Center
Location: Edward M. Kennedy Institute for the United States Senate, Columbia Point 210 Morrissey Blvd. Boston, MA
Featured Speakers: This program will begin with a wide-ranging conversation between U.S. Supreme Court Associate Justice Stephen Breyer, moderated by National Constitution Center President and CEO Jeffrey Rosen.
Panel Discussion: Then, a discussion on the First Amendment and hate speech, moderated by National Constitution Center Jeffrey Rosen, will take place featuring the following speakers:
• Jud Campbell, Assistant Professor of Law, University of Richmond School of Law
• Stephen D. Solomon, Marjorie Deane Professor of Journalism, New York University; Author, Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech; Editor, firstamendmentwatch.org
• Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School; Former President, American Civil Liberties Union
Nadine Strossen to give U.W. Ed Mignon Distinguished Lecture
Date: Monday, April 2, 2018 | 4:30 – 5:30 PM
Location: University of Washington, HUB South Ballroom
Description: In her book, Hate: Why We should Resist it with Free Speech, Not Censorship, New York Law Professor Nadine Strossen she argues that our political and campus discourse are increasingly filled with charges and counter-charges of “hate speech” to stigmatize and suppress seemingly any speech whose ideas are viewed as hated and hateful. Speech as disparate – and important in our democracy – as campaigning for Donald Trump and advocating for Black Lives Matter, has been denounced as “hate speech.” Moreover, too many political and other leaders make erroneous statements about the legal status of such speech, declaring either that “hate speech is not free speech” or that it is absolutely protected. To the contrary, U.S. law appropriately takes a more nuanced approach, protecting some, but not all, speech that conveys hateful or discriminatory messages.
This lecture will explain why the U.S. approach not only is consistent with core principles of liberty and democracy, but also is the most effective strategy for advancing equality, societal harmony, and individual dignity and psychic well-being. It cites the many past and present social justice advocates, both in the U.S. and worldwide, who concur that these essential goals are thwarted by censorship, but effectively promoted through non-censorial strategies, including counter-speech.
- Nadine Strossen & John Whitehead, First Amendment Roundtable, The Rutherford Institute, YouTube, March 20, 2018,
Forthcoming Book by Mark Tushnet
- Mark Tushnet, Advanced Introduction to Freedom of Expression (Edward Elgard Publishing (forthcoming 2018-2019)
Abstract: The Advanced Introduction to Freedom of Speech provides an overview of major issues in the doctrinal structure of a law of freedom of expression, relevant to discussions of freedom of expression under many national constitutions. Assuming familiarity with basic theories of free expression, this book addresses the implications of reasonable disagreement between legislatures and courts about whether a specific measure violates freedom of expression, the implications of the fundamental proposition that speech can cause harm, the distinction between the coverage of freedom of expression and the protections it affords, and the appropriate doctrinal forms when speech is said to conflict with other rights such as equality, or merely other social interests. The book should be of interest to anyone, including students, teachers, researchers and policymakers wanting to learn more about the freedom of speech and the Law.
Mark Tushnet presents a concise yet comprehensive overview of free expression law, understood as a form of constitutional law. Confronting the major issues of free expression – speech critical of government, libel law, hate speech regulation, and the emerging challenges posed by new technologies – he evaluates the key questions and potential difficulties for future generations.
Contrasting the United States with current law in Europe and elsewhere, Tushnet argues that freedom of expression around the world should reflect deference to legislative judgments unless those judgments reflect inadequate deliberation or bias, and that much of the existing free expression law is consistent with this view.
Key features include:
• Comprehensible for both students of law and non-specialist readers interested in freedom of expression from a legal perspective
• Viewpoints from multiple legal systems including analysis of decisions made by the US Supreme Court and the European Court of Human Rights
• Explains the two legal doctrinal structures: categorical, rule-bound approaches and standards-based approaches
• List of key references for further reading, allowing readers to extend their knowledge of the topic past the advanced introduction.
Forthcoming Book: First Amendment rights of lawyers
- Margaret C. Tarkington, Voice of Justice: Reclaiming the First Amendment Rights of Lawyers (Cambridge University Press, August 31, 2018)
Abstract: The First Amendment rights of lawyers are ethereal. Most lawyers fail to realize that courts may deny them access to the First Amendment’s protective shield in many regulatory and disciplinary contexts. Overall, attorneys cannot and should not assume that they can obtain First Amendment protection-especially when acting as an attorney in their role as an “officer of the court.” Yet, it is precisely in the lawyering context-where attorneys engage in speech, association, and petitioning for the very purpose of securing client rights, invoking law, enabling the judicial power, and obtaining justice-that the need for First Amendment protection is the most acute. If regulators silence that voice, they silence justice. From overarching theory to specific real-world contexts, this illuminating book provides a critical resource for lawyers, judges, and scholars to understand the relationship between the First Amendment rights of lawyers and the integrity of the justice system.
* * * *
- John C. Knechtle, Mastering First Amendment Law (Carolina Academic Press, April 12, 2018)
New & Forthcoming Articles
- Ashutosh Avinash Bhagwat, Candides and Cassandras: Technology and Free Speech on the Roberts Court, Washington University Law Review (forthcoming 2018)
Abstract: John Roberts assumed his position as Chief Justice of the United States just prior to the commencement of the October 2005 Term of the Supreme Court. That was seven years after Google was incorporated, one year before Facebook became available to the general public, and two years before Apple released the first iPhone. The twelve years of the Roberts Court have thus been a period of constant and radical technological innovation and change, particularly in the areas of mass communication and the media. It is therefore somewhat astonishing how few of the Roberts Court’s free speech decisions touch upon new technology and technological change. Indeed, it can be argued that only two cases directly address new technology: Brown v. Entertainment Merchants Association on video games, and Packingham v. North Carolina on social media. Packingham, it should be noted, is the only Roberts Court free speech case directly implicating the Internet. Even if one extends the definition of cases addressing technology (as I do), only four cases, at most, can be said to address technology and free speech.
It seems inevitable that going forward, this is going to change. In particular, recent calls to regulate “fake news” and otherwise impose filtering obligations on search engines and social media companies will inevitably raise important and difficult First Amendment issues. Therefore, this is a good time to consider how the Roberts Court has to date reacted to technology, and what that portends for the future. This paper examines the Roberts Court’s free speech/technology jurisprudence (as well as touching upon a few earlier cases), with a view to doing just that. The pattern that emerges is a fundamental dichotomy: some Justices are inclined to be Candides, and others to be Cassandras. Candide is the main character of Voltaire’s satire Candide, ou l’Optimisme, famous for repeating his teacher, Professor Pangloss’s mantra “all is for the best” in the “best of all possible worlds.” Cassandra was the daughter of King Priam and Queen Hecuba of Troy in Greek mythology, condemned by the god Apollo to accurately prophesize disaster, but never to be believed. While not all justices fit firmly within one or the other camp, the Roberts Court is clearly divided relatively evenly between technology optimists and technology pessimists.
The paper begins by analyzing the key technology/free speech decisions of the Roberts Court, and classifying the current Justices as Candides or Cassandras based on their opinions or votes in those cases. In the remainder of the paper, I offer some thoughts on two obvious questions. First, why is the Court divided between Candides and Cassandras and what qualities explain the divergence (spoiler: it is not simply partisan or political preferences). And second, what does this division portend for the future. As we shall see, my views on the first issue are consistent with, and indeed closely tied to, Greg Magarian’s analysis of Managed Speech on the Roberts Court. On the second question, I am modestly (but only modestly) optimistic that the Candides will prevail and that the Court will not respond with fear to new technology. I am, in other words, hopeful that the Court will fend off heavy-handed efforts to assert state control over the Internet and social media, despite the obvious threats and concerns associated with that technology. I close by considering some possible regulatory scenarios and how the Court might respond to them.
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Michael C. Dorf & Sidney G. Tarrow, Stings and Scams: “Fake News,” the First Amendment, and the New Activist Journalism, University of Pennsylvania Journal of Constitutional Law (2018)
Abstract: Constitutional law, technological innovations, and the rise of a cultural “Right to Know” have recently combined to yield “fake news,” as illustrated by an anti-abortion citizen-journalist sting operation that scammed Planned Parenthood. We find that the First Amendment, as construed by the Supreme Court, offers scant protection for activist journalists to go undercover to uncover wrongdoing, while providing substantial protection for the spread of falsehoods. By providing activists the means to reach sympathetic slices of the public, the emergence of social media has returned journalism to its roots in political activism, at the expense of purportedly objective and truthful investigative reporting. But the rise of “truthiness”—that is, falsehoods with the ring of truth, diffused through new forms of communication—threatens the integrity of the media. How to respond to these contradictions is a growing problem for advocates of free speech and liberal values more generally.
* * * *
- Ari Ezra Waldman, The Marketplace of Fake News, University of Pennsylvania Journal of Constitutional Law (forthcoming 2018)
- Leslie Kendrick, Use Your Words: On the “Speech” in “Freedom of Speech,” Michigan Law Review (2018)
- Amy Gajda, Privacy, Press, and the Right to Be Forgotten in the United States, Washington Law Review (2018)
- Christopher Robertson & D. Alex Winkelman, Incentives, Lies, and Disclosure, University of Pennsylvania Journal of Constitutional Law (2018)
- Joseph J. Martins, The One Fixed Star in Higher Education: What Standard of Judicial Scrutiny Should Courts Apply to Compelled Curricular Speech in the Public University Classroom?, University of Pennsylvania Journal of Constitutional Law (2018)
- Mark A. Conrad, Matal v. Tam—A Victory for the Slants, A Touchdown for the Redskins, But an Ambiguous Journey for the First Amendment and Trademark Law, Cardozo Arts and Entertainment Law Journal (forthcoming 2018)
- William James Seidleck, Anti‐SLAPP Statutes and the Federal Rules: Why Preemption Analysis Shows they Should Apply in Federal Diversity Suits, University of Pennsylvania Law Review (2018)
Book Review Essay
- Bertrall L. Ross II, Paths of Resistance to Our Imperial First Amendment, Michigan Law Review (2018) (reviewing Citizens Divided: Campaign Finance Reform and the Constitution by Robert C. Post)
Balkin vs Graber on Stormy Daniels, non-disclosure agreements, & the First Amendment
This from Professor Jack Balkin over at Balkinization: “Mark Graber has argued that the First Amendment should protect Stormy Daniels’ violation of her nondisclosure agreement with Donald Trump. I doubt that this is correct– for reasons described below, I think her best argument sounds in contract law. But even if Mark is correct, I want to argue in this post that there are very good reasons why the First Amendment generally does not forbid enforcement of contacts that prevent the disclosure of sensitive personal information. Most companies’ privacy policies depend on this proposition. These considerations are especially important in the digital age. We should not use First Amendment doctrine to make it difficult if not impossible for governments to implement reasonable privacy protections that will prevent the disclosure and manipulation of sensitive personal information. . . .”
New & Notable Blog Posts
- Ruthann Robson, Daily Read: Stormy Daniels Sues Trump’s Lawyer for Defamation, Constitutional Law Prof Blog, March 26, 2018
- Eugene Volokh, “The City Cannot … Prospectively Try to Guess Whether Certain [Speakers] … Will … Create a Disturbance,” Volokh Conspiracy, March 22, 2018
Latest “So to Speak” Podcast
- Intro by Nico Perrino, First Amendment Salon, Masterpiece Cakeshop v. Colorado Civil Rights Commission
Latest “Legal Talk Network” Podcast
- Uncovering the secret history of how corporations gained their civil rights (Adam Winkler, author of We the Corporations: How American Businesses Won Their Civil Rights, shares what he learned from his investigation into how corporations have achieved constitutional protections.)
New from First Amendment Watch
- President Trump’s Plans for Libel Laws, First Amendment Watch, March 21, 2018
- Judge Rules Defamation Suit Brought By An Ex-Apprentice Against President Trump Is A Go, First Amendment Watch, March 21, 2018
- Former Met Music Director James Levine Sues For Defamation, First Amendment Watch, March 19, 2018
News, Editorials, Op-eds, & Blog Posts
- David L. Hudson, Jr., Can anti-profanity laws and the fighting words doctrine be squared with the First Amendment?, ABA Journal, April 2018
- Ken Paulson, To battle fake news and trolls, we need more sunlight on our social media, First Amendment Encyclopedia, March 23, 2018
- Daniel Nazer, First Amendment and FX Triumph in “Feud” Right of Publicity Case, Electronic Frontier Foundation, March 26, 2018
- Editorial, The ‘Heckler’s Veto’ v. The First Amendment, N.J. Law Journal, March 26, 2018
- Robert Shibley, White House forum discusses free speech on campus, FIRE, March 23, 2018
Looking Back: “Newshour” Exchange — John Roberts vs Larry Tribe (1991)
- This on YouTube from The NewsHour (debate on Witchita abortion clinic protest 1991)
YouTube: White House Free Speech Forum
- White House Forum – Free Speech On College Campuses, Alliance Defending Freedom, March 21, 2018
2017-2018 Term: First Amendment Free Expression Cases
- Benisek v. Lamone (argument: March 27, 2018)
- National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
- Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
- Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
- Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
- Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)
Pending: Cert. Petitions
- Contest Promotions, LLC., v. City & County of San Francisco
- Holmes v. Federal Election Commission
- Flanigan’s Enterprise, Inc. v. City of Sandy Springs
- Nationwide Biweekly Administration, Inc., et al v. Perez
- CTIA v. City of Berkeley
- Harris v. Cooper
- A Woman’s Friend Pregnancy Resource Clinic v. Becerra
- Livingwell Medical Clinic, Inc. v. Becerra
- Berninger v. Federal Communications Commission
- Walker v. N.Y.C. Dep’t of Educ. et al.
- Shepard v. Florida Judicial Qualifications Commission
- Morris v. Texas (dismissed for want of jurisdiction)
- Connecticut v. Baccala
- Tobinick v. Novella
- Muccio v. Minnesota
- Elonis v. United States
- 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
- MasTec Advanced Technologies v. National Labor Relations Board ((1) Whether, under NLRB v. Local Union No. 1229, International Brotherhood of Electrical Workers (Jefferson Standard), an employer may discharge an employee for his or her disloyalty when that employee makes disparaging and disloyal public statements about the employer’s only customer; and (2) whether, in such cases, the employee’s disloyalty is measured under an objective or subjective standard.)
Last Scheduled FAN # 183: Pushback: Seidman’s “Can Free Speech Be Progressive?” article draws critical response
Next Scheduled FAN # 185: Wednesday, April 4, 2018