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.
AUSTIN, TX – The Pillar of Law Institute filed an amicus curiae (friend-of-the-court) brief with the Texas Court of Criminal Appeals in the case Cary v. Texas today, arguing that the Texas Attorney General’s Office unconstitutionally applied the state’s bribery, money laundering and organized crime statutes to what were actually campaign finance violations.
At last week’s open meeting of the Federal Election Commission, the commission voted 4-2 to take no further action on a proposal to allow third parties to publicly comment at commission meetings regarding advisory opinion (“AO”) requests. Audio discussion of this portion of the meeting is now available. The proposal was supported with a joint letter from two campaign finance reform groups, the Campaign Legal Center (“CLC”) and Democracy 21 (“D21”). These groups were the only two groups to provide any comment at all, but this was only one prong in their effort: what just failed administratively remains before the House of Representatives. That is, this is but one effort by these campaign finance “reform” groups to join the FEC’s AO process.
Two weeks ago, at the Federal Election Commission’s monthly open meeting, things got a bit heated. In a divide that falls largely between party lines—but is not, contrary to popular belief, politically partisan—Chair Ann Ravel and Commissioner Ellen Weintraub testily called for publishing a petition for rulemaking that they submitted in early June. Unable or unwilling to answer some important legal questions raised by the Republican commissioners about the merits of this tactic, including whether or not Ravel and Weintraub would have to recuse themselves if the Commission heard the petition on its merits, Weintraub simply huffed “I’m very impressed by the amount of time and effort that my colleagues put in trying to come up with a reason to vote ‘no’ on this.” Nevertheless, by throwing in some baseless Citizens United quips, Weintraub led the press coverage and all remains righteous in the campaign finance reform echo chamber.
But it was not the Republican commissioners alone who criticized Ravel and Weintraub’s petition. The remaining Democrat Commissioner, Steven Walther, did not merely question procedure but the substance of the petition. He summed his criticism up nicely: “I don’t think it’s a call for the kind of serious rulemaking that we should be doing.” He’s entirely correct, and we need look no further than the petition’s call for new coordination rules to see how unserious it really is.
Some of us are stricken with an unflinching inclination toward liberty. We'd prefer that a free people be able to speak as they see fit, pool their resources together as they'd like, associate in commonality as they enjoy, and otherwise engage in the American experiment.
A few weeks ago Ken White at Popehat revealed the contents of a subpoena the U.S. Department of Justice secured from a grand jury and served on Reason.com. This subpoena demanded that Reason turn over “any and all identifying information” relating to certain comments made below an online post discussing the life sentence of Ross Ulbricht, founder of the notorious online marketplace Silk Road. The comments in question were allegedly threats against Judge Katherine Forrest, who gave Ulbricht his sentence. In workmanlike fashion, White dispelled the notion that any of the comments in question—though many were disgusting—could be reasonably understood as actual threats on Judge Forrest. The subpoena was, in short, baseless and violated the free speech rights of the commenters and Reason. However, new information revealed late last week shows that the subpoena was only the beginning of one U.S. Attorney’s secret speech inquisition, and but another chilling example of secret persecution in America.
Washington, DC – The Pillar of Law Institute filed a friend-of-the-court brief with the United States Supreme Court today in the case Utter v. Building Industry Association of Washington (BIAW), urging the Court to hear the case and reinforce free speech protections against burdensome campaign finance laws. The brief argues that organizations such as BIAW should not be subject to comprehensive campaign finance disclosure laws since they do not have the major purpose of engaging in elections.
Last Friday, Tyler Harber was sentenced to two years in prison for illegally coordinating a candidate’s campaign for a U.S. House seat with a “super PAC.” That is, Harber managed candidate Chris Perkins’s campaign while at the same time running a political committee that raised money and ran ads in favor of Perkins. This is as understandable as coordination gets; its prohibition is fairly understood by campaign workers who do a modicum of research (no law degree required), and it was appropriate to prosecute Harber. Notably, under Harber’s leadership, the PAC “paid $138,000 to his mother’s company for work that was never performed and used $118,000 of that cash for personal expenses.” This is a particularly cut-and-dry case, but it is surprising that the press believes that it is somehow a “sharp warning” to federal campaigns nationwide. I don’t believe that’s true, and in fact it’s just the opposite.
If the last few weeks have taught us anything about free speech, it’s that too many Americans support censorship. It should be no surprise that less-obvious speech problems like campaign finance laws are not widely recognized. But beneath the complexity, the problems and principles to combat them are the same.
One humorous piece of free speech history at the United States Supreme Court is Justice Potter Stewart’s single-paragraph concurrence (an opinion that agrees with the Court’s majority but for different reasons) in the case Jacobellis v. Ohio (1964). Agreeing that Louis Malle’s film The Lovers did not constitute “hard-core pornography,” Justice Stewart then said:
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
One can appreciate Justice Stewart’s frankness about the difficulty of articulating standards that separate obscenity—which is not protected free speech—from films like The Lovers, but it is still ironic that he capped his concurrence with such a quip as “I know it when I see it.” If it were a standard, it would require filmmakers and movie theater owners to come to court, perhaps the Supreme Court, before screening a risqué film, in turn making the First Amendment’s protection of artistic expression meaningless.
The title alone will raise eyebrows, and the total of Jonathan Rauch’s new short book published by the Brookings Institution (available for ) is likely to infuriate some political reformers. Rauch weaves together the threads of a developing school of thought in academia and politics—which he calls political realism—that recognizes the folly of certain political “reforms,” including campaign finance laws. As a free speech and campaign finance attorney who often puts scare quotes around the word “reform,” obviously I welcome his assessment. At the very least, Rauch’s piece indicates there may be a renaissance of nuance brewing within the campaign finance debate.