“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. Sullivan, 376 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. Button, 371 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.” Bellotti, 435 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. Hicks, 539 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. Sullivan, supra, 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.”

 

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.