“Appearance of Corruption:” Can Political Speech and Association Be Limited Because It Is Unpopular?

“Appearance of Corruption:” Can Political Speech and Association Be Limited Because It Is Unpopular?

In the last week, PPLI has filed two amicus curiae briefs in the U.S. Supreme Court dealing with the “appearance of corruption” rationale for imposing limits on campaign contributions. One brief, with the Institute for Free Speech, was filed on August 16, 2018, in Zimmerman v. City of Austin, Texas, No. 18-93; the other brief was filed on August 23 in Lair v. Mangan, No. 18-149.

The briefs look at a hidden, but vitally important issue in these cases. Much of the debate over whether governments can limit campaign contributions is over “corruption,” the exchange of official actions for gifts to the officials. But there is another, related but less-discussed issue: the “appearance of corruption,” which is measured by public confidence in the American democratic system. The evidentiary standard for showing corruption has been recently debated at the Supreme Court and limited to actual quid pro quo corruption. But the lower courts sometimes simply rely on public opinion polls or campaign consultants’ testimony about public opinion to justify campaign limits.

The PPLI amicus briefs ask the Supreme Court to review these cases to be sure that the public opinion polls and other methods used to test an “appearance of corruption” meet the most up-to-date evidentiary standards for justifying contribution limits.

Complete information can be found on this Litigation page.

Facebook’s “Hate Speech” Algorithm Rejects the Declaration of Independence as “Hate Speech”

Facebook’s “Hate Speech” Algorithm Rejects the Declaration of Independence as “Hate Speech”

I’ve written several times now about the problems that Facebook and other social media giants will have trying to use machine language to police and weed out “hate speech,” so it’s not surprising that, as NBC News and other media reported, Facebook banned the Declaration of Independence just before July 4th. The Vindicator, “The oldest continuously printing news source in South Liberty County [Texas]since 1887,”

challenged its Facebook followers to read the Declaration of Independence. To make it a little easier to digest that short but formidable historic document, the newspaper broke the Declaration down into 12 small bites and one to post each morning from June 24 to July 4. The first nine parts posted as scheduled, but part 10, consisting of paragraphs 27-31 of the Declaration, did not appear. Instead, The Vindicator received a notice from Facebook saying that the post “goes against our standards on hate speech.” …

The removal of the post was an automated action. If any human being working at Facebook were to review it, no doubt the post would be allowed, and the editor has searched for a means of contacting Facebook for an explanation or a opportunity to appeal the post’s removal, but it does not appear the folks at Facebook want anyone contacting them. Or, at least, they do not make it easy. The Vindicator has sent Facebook a feedback message. That being the only way found so far to contact the company. …

So, the removal of this morning’s post puts The Vindicator in a quandary about whether to continue with posting the final two parts of the Declaration scheduled for tomorrow and Wednesday. Should Facebook find anything in them offensive, The Vindicator could lose its Facebook page.

This is frustrating, but your editor is a historian, and to enjoy the study of history a person must love irony. It is a very great irony that the words of Thomas Jefferson should now be censored in America.

On July 3, after national media began covering the story, Facebook did reinstate the Declaration of Independence. The Vindicator posted an update:

UPDATE: Earlier this evening, July 3, the good folks at Facebook restored the post that is the subject of this article. An email from Facebook came in a little after The Vindicator’s office closed today and says the following:

“It looks like we made a mistake and removed something you posted on Facebook that didn’t go against our Community Standards. We want to apologize and let you know that we’ve restored your content and removed any blocks on your account related to this incorrect action.”

The Vindicator extends its thanks to Facebook. We never doubted Facebook would fix it, but neither did we doubt the usefulness of our fussing about it a little.

This point of this story is not that the algorithm made a mistake; that was expected. After all, Facebook has already flagged a number of legitimate posts as “hate speech.”

The real story is that Facebook has failed on a key element of its April 24 announcement of its plan to label and reject “hate speech:” what happens when someone’s legitimate posting is flagged as “hate speech?” Facebook said it would have an “appeals” process, but that process would be “built out” “over the coming year.” But clearly, in the Vindicator’s case, that process did not work as intended. Facebook described its process as:

As a first step, we are launching appeals for posts that were removed for nudity / sexual activity, hate speech or graphic violence.

Here’s how it works:

  • If your photo, video or post has been removed because we found that it violates our Community Standards, you will be notified, and given the option to request additional review.

  • This will lead to a review by our team (always by a person), typically within 24 hours.

  • If we’ve made a mistake, we will notify you, and your post, photo or video will be restored.

But at least so far, Facebook’s “build out” does not appear to include that very important point: there isn’t an “option to request additional review.” Facebook explains that it reviews millions of posts every day using its automated screening system, and admits that it will make mistakes.

But should Facebook automatically review its reviewers? Or simply wait until someone can interest the media in its mistakes before acting?



Supreme Court Reverses Injunctions Against “Travel Ban,” Rejects Use of Campaign Statements

Supreme Court Reverses Injunctions Against “Travel Ban,” Rejects Use of Campaign Statements

Last year, the Public Policy Legal Institute and the Institute for Free Speech filed “friend of the court” briefs in the Supreme Court of the United States challenging an opinion of the U.S. Court of Appeals for the Fourth Circuit that hailed a “welcome restraint” of campaign speech that exhibited religious bias. Those filings were part of a long train of legal reviews of the Trump Administration’s series of Executive Orders imposing a ban on admissions of persons from several countries which did not have accurate or secure identification systems or were sponsors of terrorism. In the challenge to the Fourth Circuit’s “welcome restraint” theory, the Supreme Court vacated and remanded the troublesome Fourth Circuit’s opinion, and on remand, the Fourth Circuit said that it did not rely on campaign speech to reach its next decision (but it actually did).

Today, June 26, 2018, the Supreme Court of the United States issued its final decision in this long line of cases. The Court reversed the lower court decisions enjoining the “travel ban” and sent the cases back to the lower courts.

The majority opinion, written by Chief Justice John Roberts, said, in part:

At the heart of plaintiffs’ case is a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation. …

Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself. …

Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy by reference to extrinsic statements—many of which were made before the President took the oath of office. …

For our purposes today, we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review. That standard of review considers whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. See Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 179 (1980). As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds. …

The Proclamation does not fit this pattern. It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplicable
by anything but animus.” Indeed, the dissent can only attempt to argue otherwise by refusing to apply anything resembling rational basis review. But because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification. …

Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim.

Trump v. Hawaii, No. 17-965 (June 26, 2018).

Media coverage, as is common, has focused on the first part of the opinion, citing Chief Justice Roberts’ comment that “we must consider not only the statements of a particular President, but also the authority of the Presidency itself.” But for lawyers, the real meat of the decision is in the standard of review to be applied (which actually explains why this part of Roberts’ opinion was so succinct).

The new standard of review is rational basis, which is restated here as: “It cannot be said that it is impossible to ‘discern a relationship to legitimate state interests’ or that the policy is ‘inexplicable by anything but animus.’”

So, if the biased campaign statements are the only grounds for the official action, or the policy itself is “inexplicable by anything but animus,” the courts can look to the campaign statements to see if there is a violation. But if the facial explanation both shows an important governmental interest and is readily related to legitimate state interests, the Court, at least in national security questions, won’t look to campaign statements.

In the “travel ban” case, there was sufficient national security interest to justify the ban on admissions from certain countries with demonstrated security concerns even in the face of Presidential statements that might implicate religious bias.

It’s Actually Easy to Find Liberals Strongly Defending Free Speech

It’s Actually Easy to Find Liberals Strongly Defending Free Speech

Sometimes Senators (including one who won’t be named because of a pending election) ask questions like: “Why is there not a liberal standing here defending the Bill of Rights and the First Amendment?” It’s a reasonable question in light of books like Steven Schifren’s 2016 book What’s Wrong With the First Amendment? But unabashed liberals who love and protect the First Amendment are actually still out there, and speaking loudly, if anyone is listening.

Protecting the First Amendment, with its priceless protections for free speech, association and rights to petition for redress of grievances, is not a partisan issue, nor an ideological one. At least not yet. Just a few examples:

AFJ Releases New Edition of Advocacy Manual for Tax-Exempt Organizations:

One of the best resources for nonprofit organizations that want to conduct advocacy within the myriad and complex rules is the Alliance for Justice‘s Bolder Advocacy program. I recommend it to audiences all the time, and will do so again next month in a Continuing Legal Education program. AFJ has just released the fourth edition of The Connection, its instruction manual showing how to conduct legal- and tax-compliant advocacy.

Concurrent Opinions Debate:

Over at the blog Concurring Opinions, a debate of sorts among famed lions of the Left on liberal support for free speech. Yesterday, Ronald Collins of the University of Washington wrote about “the liberal flight from the First Amendment,” and today Ira Glasser, Executive Director of the ACLU from 1978-2001, (pictured above) picked up the thread with “Who has the power to decide? That’s the First Amendment question.”


Defending speech with which we differ, and which we find offensive, has always been difficult. That is why the First Amendment was such a political feat when it was ratified in 1791, and continues to be an astonishing fact of constitutional liberty so long as it is faithfully honored. Toleration (that enemy of the self-righteous) has always been at the heart of the First Amendment. But ideology makes its demands and when it does liberty is left wounded. …

Not too very long ago, the Senate Judiciary Committee considered a proposal, endorsed by 42 Democrats, to amendthe First Amendment. Why? The answer is as simple as it was astonishing: Because they were outraged that the Supreme Court had vindicated First Amendment claims involving political speech in the form of contributions in an election campaign. To be more precise, but no less honest, they were livid with the Court’s handling of campaign finance cases dating back to 1976 – that is, rulings by the Burger, Rehnquist, and now Roberts Courts. (Let us not forget that liberal stalwarts such as Justices William Brennan and Thurgood Marshall signed onto some of those objectionable opinions).

In 1997, in response to similar efforts to amend the First Amendment, Senator Ted Kennedy counseled: “In the entire history of the Constitution, we have never amended the Bill of Rights, and now is no time to start. It would be wrong to carve an exception to the First Amendment. Campaign reform is a serious problem, but it does not require that we twist the meaning of the First Amendment.” But that was then. Now, carving out an exception to the First Amendment is the liberal battle cri du jour, with virtually every Democrat in the Senate then supporting the “twisting” of the First Amendment against which Senator Kennedy warned.  …

Some of the Court’s leading liberals, such as Justice Stephen Breyer, often wrote or joined opinions in stark conflict with those of great liberal jurists of the past. In several important ways, such opinions were more hostile to First Amendment values than any of the opinions of some of the more conservative Justices of today. For example, one of Justice Breyer’s opinions (his dissent in McCutcheon v. Federal Election Commission) went so far as to read the First Amendment not as protection against government, but rather as a guarantee intended to “preserv[e] a democratic order in which collective speech matters.” That revealing view of First Amendment law, joined by the other three more liberal members of the Court, was denounced by Chief Justice John Roberts as being contrary “to the whole point of the First Amendment” of not permitting the will of the majority to carry the day by barring speech of which it disapproved.


The key question that many “progressives” have been mostly ignoring is the question of power: Regardless of intellectual standards developed by academics to distinguish between speech that they believe has only negative or minimal value to the democratic experiment, and which therefore they believe can be distinguished from other speech and safely restricted, the only important question is who will decide how such standards are applied, and to whom. If “offensive” speech or “hate” speech were legally unprotected by the First Amendment, whose speech would be restricted in the real world under that standard would differ depending on who had the power to decide. …

The Jewish students in England in the ’70s who enthusiastically supported a student-initiated ban on racist speech were shocked when, some years later, a Zionist speaker they wanted to hear was banned under the policy they had supported. It turned out that the people with the power to decide at the time believed that Zionism was a form of racism. So the Zionist speaker was banned. The Jewish students who had supported the ban on racist speech did not get to decide. …

But as the Sedition Act of 1798, which made “false, scandalous and malicious” speech a crime, showed, the power to target disfavored political speech as “false, scandalous or malicious” (and at the very least put it on trial, and the way that law was used to prosecute and imprison political critics of John Adams), persuaded many that in order to protect true speech, false speech had to be protected as well. This was because in the world of politics and power, the ability to label disfavored speech as “false” or “malicious” would inevitably spill over onto precisely that speech the First Amendment was designed to protect, including their own.

New Strossen Book:

Nadine Strossen, President of the ACLU from 1991-2008 and now a professor at NYU, has a new book out this month: Hate: Why We Should Resist It With Free Speech, Not Censorship. From the Amazon review:

HATE dispels misunderstandings plaguing our perennial debates about “hate speech vs. free speech,” showing that the First Amendment approach promotes free speech and democracy, equality, and societal harmony. We hear too many incorrect assertions that “hate speech” — which has no generally accepted definition — is either absolutely unprotected or absolutely protected from censorship. Rather, U.S. law allows government to punish hateful or discriminatory speech in specific contexts when it directly causes imminent serious harm. Yet, government may not punish such speech solely because its message is disfavored, disturbing, or vaguely feared to possibly contribute to some future harm. When U.S. officials formerly wielded such broad censorship power, they suppressed dissident speech, including equal rights advocacy. Likewise, current politicians have attacked Black Lives Matter protests as “hate speech.”

“Hate speech” censorship proponents stress the potential harms such speech might further: discrimination, violence, and psychic injuries. However, there has been little analysis of whether censorship effectively counters the feared injuries. Citing evidence from many countries, this book shows that “hate speech” laws are at best ineffective and at worst counterproductive. Their inevitably vague terms invest enforcing officials with broad discretion, and predictably, regular targets are minority views and speakers. Therefore, prominent social justice advocates in the U.S. and beyond maintain that the best way to resist hate and promote equality is not censorship, but rather, vigorous “counterspeech” and activism.