Free Speech Under Attack
If we are to remain a free people, we need the foundation of the First Amendment. Free Speech guarantees every individual the freedom to express private opinions and beliefs publicly. Without public discourse and the freedom of associations, we will lose the greatest gift from our founding fathers.
Steve Klein serves as staff attorney and research counsel with the Pillar of Law Institute, focusing on political speech and how government regulation and overreach obfiscate that fundamental guarantee of the First Amendment.
Steve has co-authored numerous amicus curiae (friend-of-the-court) briefs for state and federal appeals courts in several important free speech cases, advocating in favor of grassroots political groups across the country. In 2014, Steve was co-counsel in three successful free speech cases in Wyoming.
Steve holds a bachelors degree in politics from Hillsdale College and a law degree from Ave Maria School of Law, where he served as Managing Editor of the Ave Maria Law Review and President of the Ave Maria Federalist Society. He is licensed to practice law in Illinois and Michigan.
A bill that passed the Colorado legislature two weeks ago would make displaying one’s own marked ballot legal, and also allow for the display of photographs of them, or “ballot selfies.” As the bill awaits signature from Colorado Gov. John Hickenlooper, some pundits have made eleventh-hour warnings in support of a veto, including Hans von Spakovsky and Grant Strobl of the Heritage Foundation. They write that the bill is “a dangerous and unjustified step backward,” and claim that it would facilitate vote buying and “open the door to intimidation and threats against voters for not voting a particular way.”
Their arguments prove baseless and, far worse, support a dangerous school of thought that threatens free speech far beyond ballot selfies.
This afternoon, in a speech at the Center for American Progress, Commissioner Ann Ravel, formerly of the Federal Election Commission (as of yesterday), gave her first speech as a private citizen since leaving the agency. Promising she will continue to speak out in support of all-encompassing campaign finance regulation, Ravel again proved that she suffers from a lack of integrity. It will likely be the last speech of hers to which I lend my ears.
Karen Hobert Flynn, president of Common Cause, joins the chorus of campaign finance “reformers” who are concerned about the nomination of Judge Neil Gorsuch to the United States Supreme Court, claiming that his “record on money in politics . . . raises significant concerns among legal experts.” (Some legal experts, that is.) Moreover, Hobert Flynn asserts, “[Gorsuch’s] champions indicate he'll protect the privileges of the wealthy and powerful at the expense of everyday Americans.”
Well, that’s rich: Common Cause has led the way to empowering entrenched political interests over the less wealthy and less politically connected. Their experiment in Colorado proves the point.
Less than a year ago, Norm Eisen, in his capacity as a fellow at the Brookings Institution, convened a campaign finance “Solutions Summit” that brought together a meeting of regulation advocates whose supposed solutions differ about as much as Oxford blue and Midnight blue. It wasn’t a conference; it was a trade show. Around the same time, Eisen co-authored an op/ed repeating an ever-recurring refrain to reverse the Supreme Court’s Citizens United decision, which enabled corporations and unions to independently speak out about candidates for office. The vitriol directed at corporations by reformers in the wake of the case is difficult to understate.
But a strange thing happened yesterday: Norm Eisen found a reason to love at least one corporation, Nordstrom.
Proponents of campaign finance regulation often base their quest on a nebulous term, “our democracy.” Though undefined, it is meant to serve as a pleasant-sounding, self-evident justification for any and all forms of political speech regulation. But the latest reformist outrage against the South Dakota Legislature reveals the weaknesses of any democracy and callous disregard for the bulwarks that keep democracy in line with freedom.
The Wisconsin "John Doe" campaign finance inquisition is a sordid tale, one of the most jarring examples of the criminalization of politics in American history. Using a secret process usually reserved for investigations of organized crime like drug trafficking, prosecutors in Wisconsin targeted a number of politically-engaged citizens with tactics that included raids of their homes and seizures of vast troves of documents. Though neighbors witnessed the raids, the targets were prohibited from speaking about the investigation. Some, thankfully, broke these gag orders, and with the end of the case other victims are now speaking out.
One year ago today, the Texas Court of Criminal Appeals, the highest criminal court in the state, heard oral argument in Cary v. Texas, an appeal consolidating two criminal cases involving a husband and wife, David and Stacy Cary.
And there the case has sat, with no ruling from the court. The wheels of justice grind ever-so-slowly, leaving important issues of political speech unresolved in the Lone Star State.
Update (October 27, 9:00 AM): Justin Timberlake removed his photo from Instagram, and discussed the situation on Jimmy Fallon last night:
Sadly, Justin learned the wrong lesson. Free speech is bigger than silly laws.
One of the conundrums of campaign finance regulation is where campaign money ends and “pure” political speech begins. Free speech advocates are rightfully wary of making this distinction, because political speech and engagement always cost money. Moreover, when government regulates campaign money, it regulates campaign activity, which can unduly influence or undermine the very purpose of campaigns—that is, to regulate government. Nevertheless, most agree that in spite of the debate about the appropriate scope of campaign finance law, there are indeed areas of political money that may be appropriately regulated and political speech that may not be regulated.
But recent events in Vermont show regulation stepping into a largely unregulated area: e-mails.
Yesterday the United States Court of Appeals for the D.C. Circuit issued an important free speech decision in the case Pursuing America’s Greatness v. Federal Election Commission (FEC). The case stemmed from campaign finance law that prohibits independent political committees (PACs) from using the names of federal candidates in their titles. The law is based on concern that an organization with a name like “Americans for Hillary Clinton” could be too easily confused with Hillary Clinton’s official campaign committee (which is “Hillary for America”), meaning donors might contribute under that impression.
The FEC’s regulations go farther than this, though, and also place certain restrictions on using candidates’ names in projects undertaken by PACs. So, Pursuing America’s Greatness was not allowed to use the title “I Like Mike Huckabee” for an effort on its website or social media during Huckabee’s presidential candidacy. The court issued a preliminary injunction against enforcing this regulation as an unconstitutional abridgment of free speech. Just as important as the ruling is the reaction and the FEC’s arguments in the case, which question just how much faith the campaign finance community really has in disclosure.