Only “Authorized” Speakers Can Put “Issue Ads” on Facebook Now

Only “Authorized” Speakers Can Put “Issue Ads” on Facebook Now

Facebook just announced, in a blog post by its Vice-Presidents for Ads and Local & Pages, that only advertisers who were “authorized” could post issue advertisements on Facebook. This extends a similar restriction Facebook announced last October.

Last October, we announced that only authorized advertisers will be able to run electoral ads on Facebook or Instagram. And today, we’re extending that requirement to anyone that wants to show “issue ads” — like political topics that are being debated across the country. We are working with third parties to develop a list of key issues, which we will refine over time. To get authorized by Facebook, advertisers will need to confirm their identity and location. Advertisers will be prohibited from running political ads — electoral or issue-based — until they are authorized.

In addition, these ads will be clearly labeled in the top left corner as “Political Ad.” Next to it we will show “paid for by” information. We started testing the authorization process this week, and people will begin seeing the label and additional information in the US later this spring. …

We know we were slow to pick-up foreign interference in the 2016 US elections. Today’s updates are designed to prevent future abuse in elections — and to help ensure you have the information that you need to assess political and issue ads, as well as content on Pages. By increasing transparency around ads and Pages on Facebook, we can increase accountability for advertisers — improving our service for everyone.

Facebook is a private entity, and so is not bound by the First Amendment. It also has a history of favoritism in political activities, including helping the 2008 Obama campaign obtain (or “scrape”) and profile friend lists – which ironically is very similar to the behavior that got Cambridge Analytica (and Facebook) in trouble by scraping lots of Facebook user information. Both organizations scraped friends lists; the major difference was that the Obama campaign asked users to send their campaign messages – an example of the peer-to-peer communication that has been a mainstay of American politics at least since the classic “Abe Lincoln four-step” technique – while Cambridge Analytica just sold the information to others).

But today’s new restrictions on “issue ads” are something different. It’s difficult enough for a private company to determine when an ad is “political” when it addresses an election or a candidate. Even the U.S. Supreme Court had to relax an “express advocacy” rule that defined an electoral or candidate-related advertisement by whether it used “magic words” of “vote for” or “vote against”: “a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007). The Federal Election Commission generally uses a “PASO” test as to whether the ad “promotes, attacks, supports, opposes” a specific candidate or party. The IRS uses a “3 T’s” test, looking at the Timing of an ad is close to an election, the Targeting of an ad is to those who will vote in a particular election, and the Text refers to a candidate’s character or fitness for office.

It is much, much harder to determine when an “issue ad” is “political.” Issue ads, by their nature, address controversial subjects on which there are reasonable positions about which people disagree. What is “political” to one person may look completely different to another. A new study suggests that reactions to “political” choices may be hard-wired into the human brain, which is one reason it’s so difficult to change those choices:

It’s no sweat to change your mind on the accomplishments of Thomas Edison. But on topics like abortion, same-sex marriage, and immigration, people don’t budge. … The brain processes politically charged information (or information about strongly held beliefs) differently (and perhaps with more emotion) than it processes more mundane facts. It can help explain why attempts to correct misinformation can backfire completely, leaving people more convinced of their convictions.

Some people may say that Facebook isn’t censoring the ads; it will still run the ads if the sponsor is “authorized” and discloses certain information. And it responded to the Ars Technica article revealing the Facebook authorization requirement by claiming that the authentication will likely be “location-based” rather than content-based.

But if that is the emphasis, why is Facebook working with “third parties” to make a list of topics on which ads will be considered “political”? Are the topics going to be controversial, partisan, only “wedge” issues (which vary from campaign to campaign) and so on?

Will Facebook end up conducting the same kind of psychological analysis of users to determine when an ad is “political” that it criticized when Cambridge Analytica used its own, proprietary and really very odd form of remote psychoanalysis? But that would be ok because … it’s Facebook, not some scummy political consulting firm?

As with the Obama-Cambridge Analytica example and the timeless examples of biased news media coverage demonstrate, very few private censorship choices would withstand even the simplest of First Amendment review if the same actions were conducted by a governmental entity. And the reason that government is simply banned from conducting such issue analyses is that nobody, even someone as big and powerful as Facebook, can do it well. So nobody – or at least nobody with power over what other people can say, see or hear – should do it at all.

Is an “Issue Ad” a “falsely narrow dumb legalism”?

Is an “Issue Ad” a “falsely narrow dumb legalism”?

“Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

FEC v. Wisconsin Right to Life


On the Election Law mailing list, which has a high noise-to-signal ratio but often has valuable information and opinions, a debate is raging between Professor Brad Smith, a former Chairman of the Federal Election Commission and founder of the Institute for Free Speech, and a list participant named Jeff Hauser (I don’t know which Jeff Hauser this is) over a National Public Radio report on whether the National Rifle Association used contributions from Russian nationals to influence the 2016 presidential election. The NPR story says, in part, that because the NRA has different financial accounts for its different entities (what most people think of as “the NRA” is a 501(c)(4) social welfare advocacy organization, but there is also a charitable organization and a political action committee), its reporters cannot determine whether Russian money filtered through into American campaign activities. “While the NRA claims it does not receive foreign money for election purposes, the movement of its money among accounts could make it difficult, if not impossible, to track how the money is spent since it is not isolated or sequestered.”

Actually, that is an extraordinarily-ignorant statement for NPR to make, since almost all expenditures for political activities, no matter what type of organization makes them, are reportable and trackable. They must be reported to the Federal Election Commission and, if made by tax-exempt organizations reporting to the Internal Revenue Service, must be reported to the IRS. Every organization which has to report such expenditures must “isolate[] or sequester[]” the money to spend and report it compliantly. And it would be no excuse to say that one tax-exempt organization could transfer funds to another (for example, a 501(c)(3) charity, which cannot make political expenditures, could transfer the funds to a 501(c)(4) advocacy organization, which could make such expenditures), since the donating organization, if it knew or believed that its contribution would be used for political purposes, would have to report the transfer in any case, and likely would have to indicate that the funds would be used for a political expenditure. Indeed, under IRS rules, charities generally have to demonstrate that they have prohibited the use of any grants to other organizations for political purposes.

Maybe NPR was referring to the “fungibility” theory, which says that a charity will give non-political dollars to an advocacy group to free up other dollars the advocacy group can use for political purposes, but its statement is far too broad for that. Besides, the Supreme Court has soundly rejected the idea that since one part of an allied group of sister organizations (actually a term of art in tax-exempt organization law) is political active, the activity must also taint all the other members of the group. FEC v. Wisconsin Right to Life, (colloquially known as WRTL II)Indeed, the Supreme Court said that the same theory applies to protect issue ads even if the organization’s other activities are expressly political. “WRTL does not forfeit its right to speak on issues simply because in other aspects of its work it also opposes candidates who are involved with those issues.” The ads must be considered on their own merits, not “could be” tests or “context.”

More likely, NPR has fallen for the fallacy that Jeff Hauser has offered: that funds used for “issue ads” are actually used for political activities. As the Supreme Court explained in WRTL II, “a genuine issue ad [for example]… focus[es] on a legislative issue, take[s] a position on the issue, exhort[s] the public to adopt that position, and urge[s] the public to contact public officials with respect to the matter.” It does not include any “indicia of express advocacy.” Yet Hauser wrote on Jan. 20, “‘Issue ads’ are known to be a falsely narrow dumb legalism by anyone who works in electoral politics.”

Actually, the “legalism” of “issue ad” is quite narrow, because all regulation of speech must be narrowly tailored to be constitutional. And it isn’t “false” because the Supreme Court requires it to be very precise to be constitutional, as it did in 2007 in an extensive discussion in FEC v. Wisconsin Right to Life. In Footnote 7, the Supreme Court clearly explained the method to distinguish between issue ads and political ads:

   our test affords protection unless an ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. It is why we emphasize that (1) there can be no free-ranging intent-and-effect test; (2) there generally should be no discovery or inquiry into the sort of “contextual” factors highlighted by the FEC and intervenors; (3) discussion of issues cannot be banned merely because the issues might be relevant to an election; and (4) in a debatable case, the tie is resolved in favor of protecting speech.

Thus, an observer cannot claim that, whatever the wording of the ad itself, the “context” or “clear intent” of the ad demonstrates that it was “intended” to affect an impending election:

For the reasons regarded as sufficient in Buckley, we decline to adopt a test for as-applied challenges turning on the speaker’s intent to affect an election. The test to distinguish constitutionally protected political speech from speech that BCRA may proscribe should provide a safe harbor for those who wish to exercise First Amendment rights. The test should also “reflec[t] our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’ ” Buckley, supra, at 14 (quoting New York Times Co. v. Sullivan376 U. S. 254, 270 (1964)). A test turning on the intent of the speaker does not remotely fit the bill.

Far from serving the values the First Amendment is meant to protect, an intent-based test would chill core political speech by opening the door to a trial on every ad within the terms of §203, on the theory that the speaker actually intended to affect an election, no matter how compelling the indications that the ad concerned a pending legislative or policy issue. No reasonable speaker would choose to run an ad covered by BCRA if its only defense to a criminal prosecution would be that its motives were pure. An intent-based standard “blankets with uncertainty whatever may be said,” and “offers no security for free discussion.” Buckley, supra, at 43 (internal quotation marks omitted). The FEC does not disagree. In its brief filed in the first appeal in this litigation, it argued that a “constitutional standard that turned on the subjective sincerity of a speaker’s message would likely be incapable of workable application; at a minimum, it would invite costly, fact-dependent litigation.” Brief for Appellee in WRTL I, O. T. 2005, No. 04-1581, p. 39.5

A test focused on the speaker’s intent could lead to the bizarre result that identical ads aired at the same time could be protected speech for one speaker, while leading to criminal penalties for another. See M. Redish, Money Talks: Speech, Economic Power, and the Values of Democracy 91 (2001) (“[U]nder well-accepted First Amendment doctrine, a speaker’s motivation is entirely irrelevant to the question of constitutional protection”). “First Amendment freedoms need breathing space to survive.” NAACP v. Button371 U. S. 415, 433 (1963). An intent test provides none.

Buckley also explains the flaws of a test based on the actual effect speech will have on an election or on a particular segment of the target audience. Such a test “‘puts the speaker … wholly at the mercy of the varied understanding of his hearers.'” 424 U. S., at 43. It would also typically lead to a burdensome, expert-driven inquiry, with an indeterminate result. Litigation on such a standard may or may not accurately predict electoral effects, but it will unquestionably chill a substantial amount of political speech.

That phrase from Buckley,at the mercy of the varied understanding of his hearers“, resonates strongly with me. Many years ago, while reviewing the record in one of the pivotal legal decisions upholding “electioneering expenditures” (which are non-political statements reported to the Federal Election Commission because they are made close to an election), I was shocked to see the plaintiffs had included an ad that I had vetted and approved to be run by a charity (which was prohibited from political activity). The ad was a classical “issue ad,” wholly directed at legislation; it asked members of the public to contact their Senator, who was Chair of an important Subcommittee that was marking up a bill critical to the organization’s mission. The markup was scheduled two weeks before the Senator’s unopposed primary election. The ad said nothing about the Senator’s character or fitness for office, and didn’t even mention the upcoming election; it was purely and simply about the bill, the markup and the fact that the Senator was chairing the Subcommittee holding the impending hearing. Yet, in the trial record and with no supporting information other than the date of publication (which was, by the way, before the “electioneering communications” rule was enacted), the ad was cited as a “sham” political ad.

The Supreme Court in WRTL II understood this danger well:

“The freedom of speech … guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.” Bellotti435 U. S., at 776 (internal quotation marks omitted). See Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y.447 U. S. 530, 534 (1980). To safeguard this liberty, the proper standard for an as-applied challenge to BCRA §203 must be objective, focusing on the substance of the communication rather than amorphous considerations of intent and effect. See Buckley, supra, at 43-44. It must entail minimal if any discovery, to allow parties to resolve disputes quickly without chilling speech through the threat of burdensome litigation. See Virginia v. Hicks539 U. S. 113, 119 (2003). And it must eschew “the open-ended rough-and-tumble of factors,” which “invit[es] complex argument in a trial court and a virtually inevitable appeal.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.513 U. S. 527, 547 (1995). In short, it must give the benefit of any doubt to protecting rather than stifling speech. See New York Times Co. v. Sullivansupra, at 269-270.

In light of these considerations, a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. Under this test, WRTL’s three ads are plainly not the functional equivalent of express advocacy. First, their content is consistent with that of a genuine issue ad: The ads focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials with respect to the matter. Second, their content lacks indicia of express advocacy: The ads do not mention an election, candidacy, political party, or challenger; and they do not take a position on a candidate’s character, qualifications, or fitness for office.

Some might describe this as in invitation to run ads without “magic words” of express advocacy. Indeed, in WRTL II, the FEC and its amici argued that the less the ad looks like express advocacy, the more effective it would be, but the Supreme Court firmly rejected that approach:

An expert for the FEC in these cases relied on those observations to argue that WRTL’s ads are especially effective electioneering ads because they are “subtl[e],” focusing on issues rather than simply exhorting the electorate to vote against Senator Feingold. App. 56-57. Rephrased a bit, the argument perversely maintains that the less an issue ad resembles express advocacy, the more likely it is to be the functional equivalent of express advocacy. This “heads I win, tails you lose” approach cannot be correct. It would effectively eliminate First Amendment protection for genuine issue ads, contrary to our conclusion in WRTL I that as-applied challenges to §203 are available, and our assumption in McConnell that “the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads,” 540 U. S., at 206, n. 88. Under appellants’ view, there can be no such thing as a genuine issue ad during the blackout period–it is simply a very effective electioneering ad.

So, although we don’t know whether the NRA used Russian money to affect the 2016 election, all this conflating still doesn’t convert money used for “issue ads” into political spending. And the protection for issue ads is long-standing and backed by the First Amendment, quite narrow, but in practice, hardly a “dumb legalism.”


D.C. Circuit Says You May Continue Using Your Smartphone

D.C. Circuit Says You May Continue Using Your Smartphone

Are you a criminal? Have you made telephone calls or sent texts that violated federal law?

You probably didn’t even know that you were violating federal law when you made a call or sent a text on your smartphone to another cellphone, but according to the Federal Communications Commission, you probably were. Under the Telephone Consumer Protection Act of 1991, it is a violation of federal law to use a “robo-dialer” (technically an “automatic telephone dialing system” or ATDS) to call a cellphone number except in a few limited circumstances. 47 U.S.C. § 227(b)(1)(A). A robo-dialer is defined as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”  47 U.S.C. § 227(a)(1). The Federal Communications Commission decided that, in an effort to be sure that telemarketers could not call cellphones, any equipment with those two capabilities would be considered a robo-dialer, even if the equipment wasn’t being used as a robo-dialer.

Have you looked at your smartphone recently? I bet it has a “contacts” function which stores numbers and can dial them.

So did you, some time in the past and probably without knowing,  actually use a “robo-dialer” ATDS to call or text a cellphone? The FCC thinks you probably did.

Fortunately, a three-judge panel of the D.C. Circuit, led by Judge Sri Srinivasan, widely-thought to have been a top contender for a Supreme Court seat in a Hillary Clinton administration, said: “Wut?”

Here, the Commission adopted an expansive interpretation of “capacity” having the apparent effect of embracing any and all smartphones: the device routinely used
by the vast majority of citizens to make calls and send messages (and for many people, the sole phone equipment they own). It is undisputed that essentially any smartphone, with the addition of software, can gain the statutorily enumerated features of an autodialer and thus function as an ATDS. The Commission in its ruling did not question the observation of a dissenting Commissioner that “[i]t’s trivial to download an app, update software, or write a few lines of code that would modify a phone to dial random or sequential numbers.” 2015 Declaratory Ruling, 30 FCC Rcd. at 8075 (Comm’r Pai, dissenting). The Commission itself noted that “[d]ialing options” are now “available via smartphone apps” that enable “[c]alling and texting consumers en masse.” Id. at 7970 ¶ 7. …

If every smartphone qualifies as an ATDS, the statute’s restrictions on autodialer calls assume an eyepopping sweep. Recall that the statute generally bars the use
of an ATDS to make any call (or send any text message) without prior express consent, and tags each violation with a minimum $500 penalty in damages for each individual recipient of each prohibited call or message. The reach of the statute becomes especially pronounced upon recognizing that, under the Commission’s approach, an uninvited call or message from a smartphone violates the statute even if autodialer features were not used to make the call or send the message. Id. at 7976 ¶ 19 n.70. …

Imagine, for instance, that a person wishes to send an invitation for a social gathering to a person she recently met for the first time. If she lacks prior express consent to send the invitation, and if she obtains the acquaintance’s cell phone
number from a mutual friend, she ostensibly commits a violation of federal law by calling or sending a text message from her smartphone to extend the invitation. See 2015 Declaratory Ruling, 30 FCC Rcd. at 8076 (Comm’r Pai, dissenting). And if she sends a group message inviting ten people to the gathering, again without securing prior express consent from any of the recipients, she not only would have
infringed the TCPA ten distinct times but would also face a minimum damages recovery against her of $5,000.

Those sorts of anomalous outcomes are bottomed in an unreasonable, and impermissible, interpretation of the statute’s reach. The TCPA cannot reasonably be read to render every smartphone an ATDS subject to the Act’s restrictions, such that every smartphone user violates federal law whenever she makes a call or sends a text message without advance consent. …

It is untenable to construe the term “capacity” in the statutory definition of an ATDS in a manner that brings within the definition’s fold the most ubiquitous type of phone equipment known, used countless times each day for routine communications by the vast majority of people in the country. It cannot be the case that every uninvited communication from a smartphone infringes federal law, and that nearly every American is a TCPA-violator-in-waiting, if not a violator-in-fact.

Actually, this kind of legislative and regulatory over-reach happens all the time in today’s rapidly-advancing technology. The TCPA started out with a noble idea: protect consumers from too many junk phone calls, especially with cellphones where, in 1991, consumers paid dearly for every second of airtime their phones were used. That, in fact, was the rationale for the government’s ability to limit people’s speech: if people were paying for the incoming phone call, then it could stop the phone calls that were made without the recipient’s consent. The First Amendment does not stop government from limiting speech that is financially injurious.

But technology and society relentlessly move on, even if statutes and government agencies do not. It wasn’t just telemarketers who were silenced by the TCPA limit on speech. It was also political campaigns, health care providers and others. Gradually a few exceptions, as for health care information, calls from schools about closures, and government callers, crept into the TCPA.

But like the monster in a horror movie who is resurrected to scare again, everyone who owned a cellphone was still subject to the 1991 definition of a robo-dialer. Until March 16, 2018, when the D.C. Circuit shed a bit of light into an increasingly-dim room.

Many people will see this as a logical – almost inevitable – conclusion in today’s connected world. And this is a very limited decision, not touching the free speech issues involved in government regulation, but going off only on statutory interpretation. That restraint is  usually welcome when judges find statutory grounds on which to rule before going to constitutional ones. But here Judge Srinivasan missed an important boat:

There is a bigger message here: when government sets its hand against private speech, even for the most popular or logical reasons, that hand better not be dead. A living hand can move with the passage of time, but a dead hand just ends up strangling an unintended and unexpected victim. Unfortunately, neither legislators nor regulators are particularly foresighted, farseeing or flexible, and rarely do government speech limitations, no matter how hotly promoted, govern so surgically precisely that they only touch the intended targets.

In other words, the speech protection of the First Amendment is often most important when the cause of the moment burns the brightest. For it is caution and restraint that protects the unimagined and unexpected future, even in the face of claims of immediate existential threat. There are a very few exceptions to the First Amendment (such as “fighting words” or other sources of imminent injury), but in almost every other case, the right response to “dangerous” or “annoying” speech is not to limit it, but to counter it with more and better speech.

Maybe now you can use that smartphone to call a few friends and let them know. … Unless the FCC appeals its loss at the D.C. Circuit.


Do As I Say, Not As I Do — The Latest 4th Circuit Travel Ban Opinion Has the Same Problem It Condemned In the Travel Ban It Enjoined

Do As I Say, Not As I Do — The Latest 4th Circuit Travel Ban Opinion Has the Same Problem It Condemned In the Travel Ban It Enjoined

We should be happy that the U.S. Court of Appeals for the Fourth Circuit took our advice in its latest decision enjoining the Trump Administration’s “travel ban” Executive Orders. After all, as the Public Policy Legal Institute and the Institute for Free Speech (formerly called the Center for Competitive Politics) requested last year, the Supreme Court instructed the Fourth Circuit not to restrain candidates’ campaign-trail speech, and the Fourth Circuit said in its February 15 decision: “we need not and thus do not rely on pre-election statements in assessing the constitutionality of the Proclamation.” Slip op., 46.

Except … despite that declaration, they did.

They didn’t themselves cite the candidate’s statements, except in a footnote. But the District Court below used campaign-trail quotes as the basis for its holding against the travel ban, and then the Fourth Circuit cited that holding without qualification or correction. Ironically, the Fourth Circuit was doing the same thing it condemned the Trump Administration for doing: although the Fourth Circuit’s official action was facially neutral, it used improper prior statements to justify its final action.

Background: The Fourth Circuit had enjoined the Trump Administration’s “travel ban” Executive Order as violating the Establishment Clause of the U.S. Constitution, relying in large part on campaign-trail quotes from then-candidate Donald Trump. The Fourth Circuit, doubling down on its disregard for the First Amendment, said:

To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint.
Int’l Refugee Assistance Project, et al. v. Trump, et al., 857 F.3d 554, 600 (4th Cir. 2017).

PPLI and IFS filed briefs with the Supreme Court asking the Court to first review and then, after the Court decided to review the case, to reverse or vacate the Fourth Circuit’s “welcome restraint” opinion. While not taking a position on the “travel ban” itself, the PPLI/IFS briefs pointed out that political campaign speech enjoys the highest level of First Amendment protection, that the Supreme Court has long held that free and full campaign speech is “essential” to democracy (not least because the people should be able to hear a candidate’s true feelings and positions without regard to political correctness), and that the Court has never permitted a court to silence campaign speech on religious grounds or any other “free-floating test for First Amendment coverage … [based on] an ad hoc balancing of relative social costs and benefits.”

The Supreme Court subsequently vacated the problematic Fourth Circuit’s “welcome restraint” opinion, with a rare citation to earlier cases saying that lower courts should not cite the vacated opinion. And on its face, the latest Fourth Circuit opinion appears to respect the Supreme Court’s vacating of its earlier opinion. But let’s let the dissenting Fourth Circuit judges explain the problem:

[R]ather than determining from the face of the Proclamation whether the reasons given for the entry restrictions were legitimate and bona fide, which would preclude a “look behind” it for extrinsic evidence of bad faith, the court looked behind it first to conclude that the Proclamation was not bona fide. With this twist of Mandel, the court then reviewed candidate Trump’s campaign statements …

Slip Op., 244.

[The Plaintiffs] urged the district court to “look behind” the Proclamation, which is concededly neutral on its face, and to rely on the same statements of candidate Trump that provided the basis for the majority’s earlier decision. The district court ruled as the plaintiffs urged …

Slip Op., 261.

Why was that bad?

The [Supreme] Court’s reluctance to consider statements made in the course of campaigning derives from good sense and a recognition of the pitfalls that would accompany such an inquiry.

Because of their nature, campaign statements and other similar statements, including tweets, are unbounded resources by which to find intent of various kinds. They are often short-hand for larger ideas; they are explained, modified, retracted, and amplified as they are repeated and as new circumstances and arguments arise. And they are often susceptible to multiple interpretations, depending on the outlook of the recipient. A court applying this new rule would thus have free reign to select whichever expression of an official’s developing ideas best supports its desired conclusion.

Moreover, opening the door to the use of campaign-trail statements and  similar musings or tweets to inform the text of later executive orders has no rational limit. If a court, dredging through the myriad remarks of an officeholder, fails to find material to produce the desired outcome, what stops it from probing deeper to find statements from a previous campaign, or from a previous business conference, or from college?

And how would use of such statements take into account intervening acts, events, and influences? When a candidate wins the election to the presidency, he takes an oath of office to abide by the Constitution and the laws of the Nation. And he appoints officers of the government and retains advisors, usually specialized in their field. Is there not the possibility that a candidate might have different intentions than a President in office? And after taking office, a President faces external events that may prompt new approaches altogether. How would a court assess the effect of these intervening events on presidential intent without conducting “judicial psychoanalysis”?

At bottom, the danger of this new rule is that it will enable a court to justify its decision to strike down any executive action with which it disagrees. It need only find one statement that contradicts the official reasons given for a subsequent executive action and thereby pronounce that the official reasons were a pretext.

Moreover, the unbounded nature of the new rule will leave the President and his administration in an untenable position for future action. It is undeniable that President Trump will continue to need to engage in foreign policy regarding majority-Muslim nations, including those designated in the Proclamation. Yet, the district court’s opinion presupposes that the Proclamation is tainted by prior campaign-trail statements and prior executive orders, clearly indicating that future actions might also be subject to the same challenges made today.

Finally, the new rule would by itself chill political speech directed at voters seeking to make their election decision. It is hard to imagine a greater or more direct burden on campaign speech than the knowledge that any statement made might be used later to support the inference of some nefarious intent when official actions are inevitably subjected to legal challenges.

Slip Op., 264-66.

Pretty much what PPLI and IFS told the Supreme Court last year.

We also warned the Supreme Court that it needed to speak strongly about the need to protect free speech, even politically incorrect free speech about religion. Otherwise the lower courts would find ways to continue using the Fourth Circuit’s vacated “welcome restraint” theory to justify chilling campaign speech. And the District Court in this case did just that.

And the Fourth Circuit, despite no longer using its “welcome restraint” language, did too. So, no, we’re not happy.