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First Amendment News 265: The future of Buckley v. Valeo: Professors and senators line up in petition to Court in campaign contributions case

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Lieu v. FCC is the Court’s first opportunity to consider the decision that is truly responsible for the dark money nightmare that most people blame, mistakenly so far, on Citizens United. Ever since the Court in Buckley v. Valeo said Congress could limit campaign contributions but not campaign expenses, there was an unresolved tension in First Amendment doctrine. With the D.C. Circuit’s decision in v. FEC, that tension became an impossible contradiction that only Supreme Court review of that unwarranted extension of Citizens United can resolve. I’m convinced this is the case in which it should do just that. 

Professor Laurence Tribe

Rarely has the Roberts Court found a campaign finance law that it likes. The Court has rendered rulings in eight such cases; sustaining the First Amendment claim in all of them (save for a disclosure requirement upheld in Citizens United v. Federal Election Commission). Five of those eight cases were decided by a 5-4 vote. (Collins & Hudson, "The Roberts Court — Its First Amendment Free Expression Jurisprudence: 2005-2020," forthcoming).

Against that backdrop comes a cert. petition that could be every bit as important as the ones submitted in Citizens United and McCutcheon v. Federal Election Commission (2014). It is a case being brought by a distinguished group of law professors.

Prof. Jeffrey Fisher

In addition to the name of the lead counsel (Professor Jeffrey L. Fisher), the other names on the cert. petition filed by the Stanford Supreme Court Litigation Clinic in Lieu v. Federal Election Commission are:

The issue in Lieu, according to SCOTUSblog, is: "Whether the federal statutory limit on contributions to political committees, 52 U.S.C. § 30116(a)(1)(C), comports with the First Amendment as applied to committees that make only independent expenditures." More specifically, it involves the constitutionality of limits on contributions to political action committees that make only independent expenditures.

Judge Emmet G. Sullivan

When the matter was decided earlier this year by U.S. District Judge Emmet G. Sullivan, he concluded:

This case centers on the balance of two competing interests. On one hand, "[t]here is no right more basic in our democracy than the right to participate in electing our political leaders . . . [which includes] contribut[ing] to a candidate's campaign." McCutcheon . . . On the other hand, "[t]o say that Congress is without power to pass appropriate legislation to safeguard an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection." McConnell v. FEC . . .  (alterations and citation omitted).

In SpeechNow the D.C. Circuit struck that balance and ruled that any contribution limits to independent expenditure-only groups (i.e. , Super PACs) were unconstitutional because the government has absolutely no anti-corruption interest in stopping contributions to such groups. . . . The FEC followed that opinion in deciding to dismiss the administrative complaint against the Super PACs in this case. Accordingly, the FEC did not act contrary to law, and defendant's motion to dismiss is GRANTED [summarily affirmed by DC Court of Appeals.]

Note: Then Judge Brett Kavanaugh sat on the SpeechNow en banc court that sustained the First Amendment claim in the case.

Cert. support: Professors, US senators & state AGs weigh in

By way of impressive backup, there is an amicus brief filed by campaign finance legal scholars in support of the petitioner's petition. The names on that amicus brief include:

The tension between the Supreme Court's treatment of contributions and expenditures is nothing new, but the Citizens United Court puts serious pressure on the doctrinal edifice of campaign finance law. The result of a future challenge to campaign contribution laws will be either erosion of the rules upholding the constitutionality of campaign contribution limitations to candidates or, more likely, greater incoherence in judicial doctrine.

— Richard Hasen (2011)

  • Richard Briffault (Columbia Law School);
  • Rebecca L. Brown (USC Law School);
  • Yasmin Dawood (University of Toronto Law School);
  • Michael D. Gilbert (University of Virginia Law School);
  • Michael S. Kang (Northwestern Pritzker Law School);
  • Bert Neuborne (NYU Law School);
  • Bertrall Ross (University of California, Berkeley Law School);
  • Douglas M. Spencer (University of Connecticut Law School); and
  • Franita Tolson (USC Law School).

Then there is an amicus brief filed by political science professors along with another one filed by three campaign finance empirical research scholars.

Additionally, six U.S. Senators have also weighed in with their amicus brief (Sheldon Whitehouse, Patrick Leahy, Tom Udall, Richard Blumenthal, Mazie Hirono, and Chris Van Hollen).

 The attorneys general of 16 states and the District of Columbia also submitted an amicus brief in support of the Petitioner.

The Department of Justice filed a request for an extension of time to file its brief; its motion to extend time to Aug. 21, 2020 was granted.

Excerpts from the cert. petition

Prof. Pamala Karlan

[Big-money contributions by super PACs]: The past decade has witnessed the emergence of a new kind of electioneering organization: the Super PAC. Like other political committees, these organizations expressly advocate the election or defeat of candidates for public office. They also fund a variety of other vital campaign activities. But unlike other political committees, Super PACs accept unlimited contributions from donors. As a result, a small cadre of extremely wealthy donors now make multi-million- dollar contributions that, for all intents and purposes, bankroll candidates’ campaigns for office.

[The reach of Citizens United]: A longstanding provision of the Federal Election Campaign Act prohibits such massive contributions: 52 U.S.C. § 30116(a)(1)(C). Enacting this statute almost a half-century ago, Congress determined that donations to political committees above its specified limit pose an unacceptable risk of corruption. But in v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc), the D.C. Circuit held that Section 30116(a)(1)(C) violates the First Amendment as applied to political committees that make only “independent expenditures”—that is, expenditures that “expressly advocat[e] the election or defeat of a clearly identified candidate” but are not coordinated with candidates or their parties, 52 U.S.C. § 30101(17). According to the D.C. Circuit, this Court’s decision in Citizens United v. FEC, 558 U.S. 310 (2010), dictates this dramatic conclusion.

[The reach of Citizens United]: [T]his Court has long subjected limits on campaign contributions to a different—and much more deferential—form of scrutiny. What is more, the statutory limit on contributions to Super PACs is functionally equivalent to other contribution limits this Court has upheld as recently as 2017 as legitimate means of curbing corruption.

[The need to review a federal law declared unconstitutional]: Now This Court’s intervention is sorely needed. An Act of Congress should not be nullified without this Court ever considering the issue—all the more so when the lower court’s reasoning is so clearly flawed. Yet the Government declined to seek review in SpeechNow, predicting the decision would prove inconsequential. Although that prediction has proven wildly inaccurate, no other case has presented the question of Section 30116(a)(1)(C)’s constitutionality to this Court.

Army & Navy must stop ban on speech about war crimes, Knight Institute says in demand letter

This from a press release from the Knight First Amendment Institute:

Knight First Amendment Institute

The Knight First Amendment Institute at Columbia University today sent a letter to the U.S. Army and U.S. Navy Recruiting Commands demanding that they cease banning individuals from their respective esports Twitch channels, @USArmyEsports and @AmericasNavy, on the basis of viewpoint. The Institute sent the letter on behalf of Jordan Uhl, a Twitch user who was banned earlier this month after he asked questions about U.S. war crimes in chats associated with those channels.

“Once the government opens up a space for expressive activity to the public at large, the First Amendment prohibits it from excluding speakers from that space on the basis of viewpoint,” said Katie Fallow, Senior Staff Attorney at the Knight First Amendment Institute. “The Army and Navy can’t constitutionally delete comments or ban people from these Twitch channels simply for asking questions about issues they would rather not address.”

Both the U.S. Army and Navy esports Twitch channels are official government-run channels used as part of the Army’s and Navy’s recruiting efforts. Both channels are open to Twitch users generally, and anyone who follows the channels can view livestreamed esports as well as chat with U.S. Army and Navy esports team players, moderators, and other followers of the channel. Team players and moderators frequently respond to questions and statements posted in the chat rooms.

Defamation suit: Washington Post and Kentucky teen reach undisclosed settlement

Over at First Amendment Watch they are reporting that:

The Washington Post announced on July 24th that it had reached a settlement with the parents of a Kentucky teenager who sued the newspaper last year over its depiction of an encounter between their son and a Native American activist.

See our deepdive: The Nicholas Sandmann Defamation Suits

“We are pleased that we have been able to reach a mutually agreeable resolution of the remaining claims in this lawsuit,” said Kristine Coratti Kelly, a spokeswoman for The Post. Kelly did not disclose the terms of the agreement.

A.G. Barr and the Michael Cohen censorship controversy

Michael Cohen, President Donald Trump's former personal attorney, sued the Department of Justice on Monday, alleging that his return to prison on July 9 after being released due to the Covid-19 pandemic constituted unlawful retaliation for his plan to publish a book about Trump. . . .

Attorney General William Barr

But Cohen lost his freedom, at least until a federal judge intervened, because the department remanded him for refusing to give up his right to speak. . . .

The Bureau of Prisons (which is part of the Justice Department) called the judges' assertions "patently false" in a statement on Thursday. . . .

[W]hen Cohen met with government officials to sign the home confinement paperwork, the conditions included a very unusual clause prohibiting Cohen from having any communications at all with the media, or to use social media. Cohen balked at signing, and he was arrested and sent back to prison.

As numerous constitutional scholars have confirmed, the media provision was patently illegal as a prior restraint on speech protected by the First Amendment, and never should have been included in the agreement Cohen was asked to sign. . .

First, how did the prior restraint provision get into Cohen's home confinement agreement in the first place? Who drafted it? Who approved the agreement?

Second, who within DOJ knew about the insertion of the prior restraint provision into Cohen's agreement prior to Cohen's filing of his lawsuit about it?

Finally, once the provision came to light and Cohen filed his civil suit based on it, why did prosecutors try to defend the provision? Were they acting on directives from Washington DC in doing so? Was Barr or anyone else at DOJ outside of lawyers from the Southern District of New York, where the lawsuit was filed, involved in crafting the government's litigation position in the civil lawsuit?

Federal judge enjoins federal agents acting against journalists 

Ruthann Robson
Prof. Ruthann Robson

Over at the Constitutional Law Prof Blog, professor Ruthann Robson reports:

In a Temporary Restraining  Order and Opinion in Index Newspapers v. City of Portland, Judge Michael Simon enjoined the U.S. Department of Homeland Security ("DHS"); and the U.S. Marshals Service ("USMS") — the "Federal Defendants" — from arresting and otherwise interfering with journalists and legal observers who are documenting the troublesome and now widely reported events in Portland, Oregon, which have attracted Congressional attention.

Judge Simon's relatively brief TRO opinion, first finds that the plaintiffs have standing, and then applying the TRO criteria importantly finds that there is a likelihood the plaintiffs would prevail on the First Amendment claim. Judge Simon found both that there was sufficient circumstantial evidence of retaliatory intent against First Amendment rights and that plaintiffs had a right of access under Press-Enterprise Co. v. Superior Court (1986).  Judge Simon found fault with many of the specific arguments of the federal defendants.


Federal judge won’t force federal officers to identify themselves when making arrests

This from Zoe Tillman over at BuzzFeed:

A federal judge on Friday denied a request by the Oregon attorney general’s office for an order that would require federal law enforcement officers in Portland to identify themselves when making arrests and place limits on the detention and arrests of protesters.

US District Judge Michael Mosman found that state Attorney General Ellen Rosenblum lacked standing to bring a lawsuit on behalf of Oregon residents because her office hadn’t articulated any specific state interest beyond the constitutional rights of individuals. . . .

The offices of the inspector general for the departments of Homeland Security and Justice announced this week that they are investigating the actions by federal law enforcement officers in Portland.

Mosman's ruling came one day after another federal judge in Portland, US District Judge Michael Simon, granted an order restricting the activities of federal officers. Simon entered a temporary restraining order on Thursday that bars federal officers from arresting or using force specifically against journalists and legal observers at demonstrations unless there is probable cause that they committed a crime.


Floyd Abrams Institute hosts conference on commercial speech

The Floyd Abrams Institute for Freedom of Expression recently held its Fifth Annual Conference on Commercial Speech.

Panel #1: The Supreme Court’s Framework for Commercial Speech: Shifting? Unmoored?

  • Robert Post – Sterling Professor of Law, Yale Law School, New Haven, CT
  • Beth Brinkmann – Partner, Covington, Washington, DC
  • Genevieve Lakier – Assistant Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School, Chicago, IL


    • Amanda Shanor - Assistant Professor, Wharton School of the University of Pennsylvania, Philadelphia, PA

Panel #2: Regulating Political Advertising Online:  Is disclosure still the key? 

  • Richard H. Pildes – Sudler Family Professor of Constitutional Law, NYU Law School, New York, NY
  • Daniel I. Weiner – Deputy Director, Election Reform Program, Brennan Center for Justice, Washington, DC
  • Allen Dickerson – Legal Director, Institute For Free Speech, Washington, DC


    • Paul Safier – Of Counsel, Ballard Spahr LLP, Philadelphia, PA

Panel # 3:Where Algorithms Meet The First Amendment

  • Jack Balkin – Knight Professor of Constitutional Law and the First Amendment, Yale Law School, New Haven, CT
  • Daphne Keller –  Director, Program on Platform Regulation, Cyber Policy Center, Stanford Law School, Palo Alto, CA
  • Nathaniel Persily – James B. McClatchy Professor of Law, Stanford Law School, Palo Alto, CA


    • Alex Abdo – Litigation Director, Knight First Amendment Institute at Columbia University, New York, NY

Panel # 4: Milk from Nuts. Burgers from Soybeans. Can the states regulate what you call them?

  • Sarah Roller – Partner, Kelley Drye and Chair of Food and Drug Law practice, Washington, DC
  • Justin Pearson – Florida Office Managing Attorney, Institute for Justice, Miami, FL
  • Claudia Haupt – Associate Professor of Law and Political Science, Northeastern University School of Law, Boston, MA


    • Brendan Healey – Partner, Baron Harris Healey, Chicago, IL
    • Jonah Knobler – Partner, Patterson Belknap Webb & Tyler, New York, NY

Video: First Amendment Salon with Dean Rod Smolla


  • The last First Amendment Salon was with Floyd Abrams and Paul Clement in conversation. Video to be posted soon.

Volokh on laws protecting private employees' speech & political activity against employer retaliation

Video: Knight Foundation host Sam Gill and Eugene Volokh talk about free speech

  • Go here for video of the exchange.

New scholarly article: 'Abortion Regulation as Compelled Speech'

Article by Laura Portuondo in UCLA Law Review:

Laura Portuondo

This Article outlines a novel First Amendment compelled speech claim against a growing body of abortion restrictions, including fetal demise and fetal burial laws, premised on a state interest in expressing respect for potential life. It weaves limitations imposed by the Supreme Court’s abortion jurisprudence together with developments set out in NIFLA v. Becerra to demonstrate that the Court’s expanding First Amendment jurisprudence has made such laws uniquely vulnerable to a compelled expressive conduct challenge.

This vulnerability results from the fact that the Court’s Fourteenth Amendment abortion jurisprudence requires all previability fetal-protective abortion regulations to be expressive, whether or not they require abortion providers to speak. Due in large part to these Fourteenth Amendment limitations, where life-protective abortion regulations compel conduct, they compel expressive conduct under the First Amendment. These laws are thus subject to heightened scrutiny under the newly rigorous compelled speech framework set out in NIFLA. Laws intended to communicate respect for potential life to people not seeking abortions receive strict scrutiny. Laws targeting women actively seeking abortions, as part of informed consent, are subject to intermediate scrutiny. Many new fetal-protective laws diverge from traditional mediums of informed consent and therefore fail First Amendment scrutiny.


So to Speak: The Free Speech Podcast logo

So to Speak podcast: ‘Speak Freely’ with professor Keith Whittington

In February, Princeton University President Christopher Eisgruber announced that he will distribute copies of “Speak Freely: Why Universities Must Defend Free Speech” to all Princeton students and faculty as part of the university’s annual “Pre-read” program.

On this episode of So to Speak: The Free Speech Podcast, our guest is Princeton professor Keith Whittington, who is the author of “Speak Freely.” We discuss the latest campus free speech news at Princeton and across the county.

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