So, previously I wrote a piece
explaining how the Foreign
Agents Registration Act is Unconstitutional, as part of a promised series
on the Mueller indictment of thirteen Russian nationals and three Russian
companies. Once again, you can read the
indictment, here,
and you can search through its text, here, and, bluntly,
you might want to read that prior piece on the Foreign Registration Act,
because this piece is going to build off of that analysis. In other words, you really might not get what
I am trying to tell you unless you read that other piece.
And yes, this will be a long one.
So let me start by saying that I
am not saying that non-citizens should
be allowed to vote. But federal law
prohibits participation by “foreigners” to a far greater degree than voting. Here’s the statute in question, 52 U.S.C. § 30121:
(a) Prohibition
It shall be unlawful for—
(1)
a foreign national, directly or
indirectly, to make—
(A)
a contribution or donation of money
or other thing of value, or to make an express or implied promise to make a
contribution or donation, in connection with a Federal, State, or local
election;
(B)
a contribution or donation to a
committee of a political party; or
(C)
an expenditure, independent
expenditure, or disbursement for an electioneering communication (within the
meaning of section 30104(f)(3) of this title); or
Now, the first problem starts
when you look up the term “foreign national.”
From the same statute:
(a)
“Foreign
national” defined As used in this section, the term “foreign national”
means—
(1)
a foreign principal, as such term is
defined by section 611(b) of title 22, except that the term “foreign national”
shall not include any individual who is a citizen of the United States; or
(2)
an individual who is not a citizen
of the United States or a national of the United States (as defined in section
1101(a)(22) of title 8) and who is not lawfully admitted for permanent
residence, as defined by section 1101(a)(20) of title 8.
Now, here it is important that
you read the last post. First, with
respect to subsection (2) you might remember that I explained that the word “individual”
is code for “flesh and blood human beings”—as opposed to artificial “persons”
such as corporations and partnerships, so now you know what that term means in
subsection (2). Further, in the last
post got through the definition of “foreign principal” mentioned in subsection
(1). The only thing to add to that is
that while the term “foreign principal” can mean a U.S. citizen in relation to
the Foreign Agents Registration Act, U.S. citizens can never be a Foreign
National under this subsection (2). So
if you didn’t read the previous post, now might be a good time.
Also, subsection (2) uses some
terms that might need explaining. For
instance, it talks about the idea of a national of the United States. That is defined in this statute as “(A)
a citizen of the United States, or (B) a person who, though not a citizen of
the United States, owes permanent allegiance to the United States.” I’ll be honest, I didn’t know for sure what
that phrase “owes personal allegiance to the United States” while not being
citizens until I came across this
page from the Citizenship and Immigration Service, where they explain that
they are referring to the people in places like American Samoa, where they are
not citizens but nonetheless owe America their allegiance.
Which still might be confusing to
many readers, in part because what is happening is frankly unjust and, in my
opinion, unconstitutional (contrary to what the courts have found so far). But what they are getting at is the concept
of treason. If I, an American citizen
who has lived his whole life in America, up and joined ISIS and bombed a train
station in Germany, that wouldn’t be treason against Germany because I owe no allegiance to Germany—I’m not a
German citizen, and you’d have to go back to my great-grandparents to find
someone who ever set foot in the country.
But if I joined ISIS and bombed a train station in New York City, that
could be treason. Further, even though a
person born in American Samoa is denied citizenship in America, the law claims
he or she owes allegiance to this country, so that if he or she joins ISIS and
bombs a train station in New York City, that is also treason. That is, it is treason against a country that
doesn’t even give that person citizenship in America as the Fourteenth
Amendment demands. But while people born
in American Samoa are denied citizenship in what I consider a continuing
injustice, at least they can speak freely like any citizen under this statute.
Meanwhile the phrase “who is not
lawfully admitted for permanent residence, as defined by section 1101(a)(20) of
title 8” is more obvious. They mean
pretty much green card holders. So
basically if you are a human and you are outside of the country, and you aren’t
a citizen, you are a foreign national.
However, if you are a real person and either here illegally, or you are
here legally, but not permanently, you are also a foreign national. So for instance, this applies if you are here
legally, but on a tourist visa. Or there
are visas just for temporary work or training in America. Those people are subject to those limitations
on their freedom of expression.
And is that all? Well, if you read my last post, you would
know that because the term “foreign principal” uses the word “includes,” there
is an unknown and undefined subset of persons (real people or entities) who
might still be foreign principals and therefore possibly foreign nationals
under the statute I am examining today.
And that is a problem, because it is the very definition of vague. The only good news is that the statute makes
it pretty clear that a citizen never falls under these limitations under any
circumstances. But as I pointed out, if
the law is too vague and it impacts the right of free speech, that vagueness
can render it unconstitutional.
And what are these foreign
nationals banned from doing? Well,
first, they cannot donate directly to campaigns or political parties, roughly
speaking. Second, an expenditure for an “electioneering
communication.”
It’s the second part of that
which is concerning and I will focus on.
Consider for example, what the Supreme Court said in Citizens United v. FEC, about the law
they struck down in that case:
The law before us is
an outright ban, backed by criminal sanctions. Section 441b makes it a felony
for all corporations—including nonprofit advocacy corporations—either to
expressly advocate the election or defeat of candidates or to broadcast
electioneering communications within 30 days of a primary election and 60 days
of a general election. Thus, the following acts would all be felonies under §
441b: The Sierra Club runs an ad, within the crucial phase of 60 days before
the general election, that exhorts the public to disapprove of a Congressman
who favors logging in national forests; the National Rifle Association
publishes a book urging the public to vote for the challenger because the
incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties
Union creates a Web site telling the public to vote for a Presidential
candidate in light of that candidate’s defense of free speech. These
prohibitions are classic examples of censorship.
“But, wait...” you might say, “liberals
constantly claim that this decision was about legalizing expenditures.” Well, that is right in one sense and highly
misleading in another. None of those
laws are triggered unless some money is spent, but it only requires some money. So, for instance, if on November 1, 2008
(three days before that year’s presidential election), you bought 1) a printer,
2) paper and 3) ink, and used them to publish a bunch of pamphlets saying “don’t
vote for Barack Obama” that you handed out by walking door-to-door in your
neighborhood, that is an expenditure for an electioneering communication in
relation to the Presidential election and, potentially, a crime under this
analysis.
---------------------------------------
Sidebar: If there is one mistake in the analysis in Citizens United, it is a tactical
one. From the first big campaign finance
case, Buckley v. Valeo, down to
today, the courts constantly talks about it being a matter of free speech. The problem with that is that at the founding
of the First Amendment, freedom of speech meant “freedom to shout as loud as
you can.” Today “speech” can be a vital
part of mass media, but back then, the only mass media was the printing press,
and thus freedom of the press was a right to engage in mass media. Freedom of speech, at the founding, was also “free”
in the sense that it was costless. But
freedom of the press has always required money to allow you to exercise that
right. It is difficult for a person to
understand that “money is speech,” but it is easy to see how obtaining, keeping
and spending money can be vital to the press.
For example, imagine if Congress
passed a law prohibiting the purchase of ink and paper if it was to be used to
create statements critical of the president.
The average person wouldn’t have a difficult time understanding how that
law is unconstitutional. And by
extension, that person would have little difficulty understanding how it
applies to the internet, now that it is the primary vehicle by which the
printed word is distributed—on news sites, Twitter, Facebook and even blogs
like this one—so it is not hard to make a regular person understand that it is
impossible to engage in the right of freedom of the press without spending
money. I mean yes, Twitter is free, and
so is Blogspot, but the computer I am writing on is not free, and neither is my
internet connection or the electricity I am using. And even the more primitive forms of written
expression—a pencil and a notebook, perhaps—requires you to spend money. It is far easier to make a person understand that
the right to get money and property (hard to write on paper, if you can’t own
paper and a pencil), to keep that money and property and to exchange that money
and property is necessary to freedom of the press, compared to freedom of
speech. I am not saying the Supreme
Court is wrong—in modern media, it’s hard to exercise freedom of speech
meaningfully without spending money, because without money your speech reaches
only as far as your voice—but it is easier for the mind to process it through
the lens of freedom of the press. And
thus Citizens United and their ilk
should have discussed the matter through the lens of freedom of the press.
---------------------------------------
A deeper way to understand what
the Supreme Court was saying in Citizens
United is to realize that the law the Supreme Court struck down didn’t
prohibit spending generally. If you want
to spend the exact same amount of money to buy cars, Legos, or fruit for your own
use you didn’t break the law. It wasn’t
even illegal to spend that money to engage in most forms of communications. It was only if you spent that money on a
certain kind of expression. So to
pretend that this law was about spending and not expression is just
dishonest. And the only question is
whether the person saying that is lying, or they are being lied to (which is
sadly common).
Like the law struck down in Citizens United, the statute I have been
examining declares that a large group of real persons and entities are
prohibited from making campaign expenditures—non-citizens of any kind in a foreign
country, and illegal immigrants and temporary immigrants/visitors to our
country. They cannot express themselves
as freely as anyone else.
“But, hey,” you might say, “that’s
being done to foreigners. Screw them.”
But look how quickly you can
recreate that paragraph I quote from Citizens United, by substituting persons
prohibited from speaking under this law:
The law before us is
an outright ban, backed by criminal sanctions. 52 U.S. Code § 30121 makes it a
felony for all foreign nationals—including nonprofit advocacy corporations—either
to expressly advocate the election or defeat of candidates or to broadcast
electioneering communications within 30 days of a primary election and 60 days
of a general election. Thus, the following acts would all be felonies under 52
U.S. Code § 30121: Médecins Sans Frontières runs an ad, within the crucial
phase of 60 days before the general election, that exhorts the public to
disapprove of a Congressman who opposes spending on international epidemics
that might eventually reach our shores; an illegal immigrant self-publishes a
book urging the public to vote for the challenger because the incumbent U.S.
Senator wishes to end DACA; and Malala Yousafzai creates a website telling
Americans to vote for a presidential candidate in light of his support of
international efforts to increase women’s education. These prohibitions are
classic examples of censorship.
As for the law, the Supreme Court
hasn’t said one way or the other whether the right to express oneself applies
overseas, but one does not have to be a citizen to invoke one’s right to be
silent (that is, your Fifth Amendment privilege against self-incrimination). For instance, in U.S. v. Balsys, a resident alien was
told that “[i]f ... Balsys could demonstrate that any testimony he might give
in the deportation investigation could be used in a criminal proceeding against
him brought by the Government of either the United States or one of the States,
he would be entitled to invoke the privilege.”
It would be strange if a non-citizen had a right to remain silent, but
could not speak freely.
Likewise, the logic of another
decision supports the notion that, while the Fourth Amendment does not apply to
property belonging to non-citizens where that property is situated outside the
territorial U.S., much of the rest of the Bill of Rights does. In United States v. Verdugo-Urquidez, a
Mexican citizen objected to a search of his Mexican property by Mexican police
at the urging of the American DEA. The
Supreme Court said that the Fourth Amendment didn’t apply with logic like this:
That text, by
contrast with the Fifth and Sixth Amendments, extends its reach only to “the
people.” Contrary to the suggestion of amici curiae that the Framers used this
phrase “simply to avoid [an] awkward rhetorical redundancy,” Brief for American
Civil Liberties Union et al. as Amici Curiae 12, n. 4, “the people” seems to
have been a term of art employed in select parts of the Constitution. The
Preamble declares that the Constitution is ordained and established by “the
people of the United States.” The Second Amendment protects “the right of the
people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that
certain rights and powers are retained by and reserved to “the people.” See
also U. S. Const., Amdt. 1 (“Congress shall make no law. . . abridging . . .
the right of the people peaceably to assemble”) (emphasis added); Art. I, § 2,
cl. 1 (“The House of Representatives shall be composed of Members chosen every
second Year by the people of the several States”) (emphasis added). While this
textual exegesis is by no means conclusive, it suggests that “the people”
protected by the Fourth Amendment, and by the First and Second Amendments, and
to whom rights and powers are reserved in the Ninth and Tenth Amendments,
refers to a class of persons who are part of a national community or who have
otherwise developed sufficient connection with this country to be considered
part of that community.
Now, with that analysis in mind,
look at the First Amendment:
Congress shall make
no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.
You’ll notice the word “the
people” doesn’t appear until it discusses the right of assembly, and that term “the
people” might arguably apply to the right to petition the Government. But the use, or the failure to use the term “the
people” suggests it was intentional. I
mean, if the intention was to limit all of it to “the people,” it would be
written more like this:
Congress shall make
no law respecting an establishment of religion over the people, or prohibiting the
right of the people to engage in the free exercise thereof; or abridging
the right of the people to freedom of
speech, or of the press; or the right of the people peaceably to assemble, and
to petition the Government for a redress of grievances.
Instead, we get an amendment that
only speaks of limitations of power until the free assembly clause, and only
then do they use language limiting who enjoys the right.
---------------------------------------
Sidebar: Reading this, you might wonder “how does this limit the
power of the president to censor people, or for that matter the states? It only seems to limit Congress.” The answer with relation to the Federal
Government is that the Courts have said that the President (and the judiciary,
for that matter) lacks the power to censor on his own, and Congress cannot
grant that power to any other branch.
Meanwhile, with respect to the states, the Fourteenth Amendment has been
interpreted to apply or “incorporate” most of the Bill of Rights to the
states. They call this the incorporation
doctrine.
---------------------------------------
Mind you, I am not saying that if
the Soviet Union locks up a dissident for criticizing the government that the
American First Amendment is violated.
What I am saying is that American government typically cannot try to
control what a person says, period, whether you are a citizen or not, whether
you are a legal immigrant or not, and whether you are standing on American soil
or not. Congress and the states cannot
silence any person, anywhere.
---------------------------------------
Sidebar: I do think there is room for a wartime exception—in other
words, if we bombed Tokyo Rose off the air during World War II, we wouldn’t
have violated her First Amendment rights.
---------------------------------------
As for the courts, D.C.
Circuit has said that the First Amendment doesn’t apply to foreigners at
all and I will quote them at length, because I think I can show the problem
with their analysis:
In those many decisions,
the Supreme Court has drawn a fairly clear line: The government may exclude
foreign citizens from activities “intimately related to the process of
democratic self-government.” Bernal v.
Fainter, 467 U.S. 216, 220, 104 S.Ct. 2312, 81 L.Ed.2d 175 (1984); see also
Gregory v. Ashcroft, 501 U.S. 452,
462, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991); Cabell, 454 U.S. at 439-40, 102 S.Ct. 735. As the Court has
written, “a State’s historical power to exclude aliens from participation in
its democratic political institutions [is] part of the sovereign’s obligation
to preserve the basic conception of a political community.” Foley, 435 U.S. at 295-96, 98 S.Ct. 1067
(internal quotation marks and citation omitted). In other words, the government
may reserve “participation in its democratic political institutions” for
citizens of this country. Id. When reviewing a statute barring foreign citizens
from serving as probation officers, the Court explained that the “exclusion of
aliens from basic governmental processes is not a deficiency in the democratic
system but a necessary consequence of the community’s process of political
self-definition.” Cabell, 454 U.S. at
439, 102 S.Ct. 735 (emphasis added). Upholding a statute barring aliens from
teaching in public schools, the Court reasoned that the “distinction between
citizens and aliens, though ordinarily irrelevant to private activity, is
fundamental to the definition and government of a State.... It is because of
this special significance of citizenship that governmental entities, when
exercising the functions of government, have wider latitude in limiting the
participation of noncitizens.” Ambach,
441 U.S. at 75, 99 S.Ct. 1589 (emphasis added). And in upholding a ban on
aliens serving as police officers, the Court stated that, “although we extend
to aliens the right to education and public welfare, along with the ability to
earn a livelihood and engage in licensed professions, the right to govern is
reserved to citizens.” Foley, 435
U.S. at 297, 98 S.Ct. 1067.
We read these cases
to set forth a straightforward principle: It is fundamental to the definition
of our national political community that foreign citizens do not have a
constitutional right to participate in, and thus may be excluded from,
activities of democratic self-government. It follows, therefore, that the
United States has a compelling interest for purposes of First Amendment
analysis in limiting the participation of foreign citizens in activities of
American democratic self-government, and in thereby preventing foreign
influence over the U.S. political process.
Applying the Supreme
Court’s precedents, the question here is whether political contributions and
express-advocacy expenditures — including donations to outside groups that in
turn make contributions or express-advocacy expenditures, see Emily’s List v. FEC, 581 F.3d 1
(D.C.Cir.2009) — constitute part of the process of democratic self-government.
In our view, the answer to that question is straightforward: Political
contributions and express-advocacy expenditures are an integral aspect of the
process by which Americans elect officials to federal, state, and local
government offices. Political contributions and express-advocacy expenditures
finance advertisements, get-out-the-vote drives, rallies, candidate speeches,
and the myriad other activities by which candidates appeal to potential voters.
See generally Buckley, 424 U.S. at
14, 96 S.Ct. 612. We think it evident that those campaign activities are part
of the overall process of democratic self-government. Moreover, it is
undisputed that the government may bar foreign citizens from voting and serving
as elected officers. See Sugarman,
413 U.S. at 647-49, 93 S.Ct. 2842. It follows that the government may bar
foreign citizens (at least those who are not lawful permanent residents of the
United States) from participating in the campaign process that seeks to
influence how voters will cast their ballots in the elections. Those
limitations on the activities of foreign citizens are of a piece and are all “part
of the sovereign’s obligation to preserve the basic conception of a political
community.” Foley, 435 U.S. at
295-96, 98 S.Ct. 1067 (internal quotation marks omitted).
And as you can see, they are
getting at exactly the questions I am exploring, but I think they are getting
it fundamentally wrong.
First, it is worth noting that
the cases cited for the idea that aliens can be excluded from the political
community dealt solely with state governments excluding non-citizens from being
government officials, usually cops and once a teacher. To stretch that the Supreme Court’s
declaration that foreigners can be excluded from actually working for the
government into the idea that they have no right to speak at all is ridiculous.
Second, the idea that only people
who can vote can speak is simply not true.
Non-voters “participate” by speaking about elections all the time. Children below the age of eighteen cannot
vote, and yet nothing stops them from speaking their mind about who you should
vote for. Many states also ban felons
from voting, but they are still allowed to speak, donate to candidates and
parties and issue electioneering communications. Likewise, green card holders can’t vote
(except maybe in California), but the statute specifically exempts them from
the limitations imposed on foreign nationals.
And for that matter, Citizens United allowed corporations to
participate by issuing electioneering communications even though such
artificial persons are not allowed to vote.
So the notion that only citizens capable of voting can tell us who to
vote for is simply wrong.
Third, this opinion misunderstands
the purpose of the First Amendment. I
agree that the primary purpose of the First Amendment is to serve
democracy. We are a republic. Power ultimately resides in the citizens of
the republic. We choose ultimately the
direction of this country.
But the right to make a choice is
the right to make that choice voluntarily and intelligently, with the chance to
receive information about that choice, and to hear people’s opinions about that
choice. That is what the First Amendment
is for: to open up the floodgates of information so that the voting citizens
can make up their minds about who or what to vote for. This is not to say that the First Amendment’s
free expression clauses only applies to political speech—its language encompasses
art, for instance—but this is their primary reason for existence: to inform the
people so their decisions in the political process are informed.
So, the right of Malala, illegal
immigrants or Médecins Sans Frontières to speak isn’t about their right to participate in the
American political process. It’s about
our rights, as citizens, to take in any information or views we want as we decide how to participate in the
political process. I am an American
exceptionalist who believes that the world has more to learn from us than we do
from it, but that doesn’t mean I won’t even listen to what a foreigner in a
foreign land might have to say. And even
if I personally refused to listen to foreigners, I wouldn’t deny another person’s
right to hear their opinions, because Americans have a right not to subscribe
to my American exceptionalism views. Thus
the right of all people, including foreigners, not to be silenced by the
American government isn’t about their right to speak, so much as our (the
citizens of America’s) right to hear them.
And that is the most basic flaw in their analysis.
Finally, there is an additional
problem when you exempt entire groups from the First Amendment. You see, the First Amendment not only
protects the right to speak, but the right not to speak, either. As the Supreme Court has said
“the right of freedom of thought protected by the First Amendment against state
action includes both the right to speak freely and the right to refrain from
speaking at all.” So, if an illegal
immigrant is not protected by the First Amendment at all, for instance, then
Donald Trump can say to an illegal immigrant “either campaign for me, for free,
or I will deport you.” Rather than
keeping the foreigners out of politics, it would make them vulnerable to being
forced to help a particular side, which would distort our politics.
So, while that opinion is
well-written, I think the D.C. Circuit is wrong and I don’t think their opinion
will prove persuasive in the long run.
And I certainly think it is wrong as an original matter.
And it is worth noting that at
least two courts have agreed that at least foreigners in America have First
Amendment Rights, here
and here.
Certainly, the strongest argument
can be made for “free speech for foreigners” involves people present in the
United States even if only temporarily or illegally. Another function of freedom of expression is
that it can call attention to problems.
Temporary workers might in fact be abused. They might be subjected to unlawful working
conditions, sexually harassed and so on.
Or maybe an illegal immigrant was pulled over by a cop and even though
he offered no resistance, was unlawfully beaten by that cop. Or maybe a person here on a tourist visa is
the only witness to a Congressman receiving a bribe. If these people are not protected by the
First Amendment, then every single one of these people can be, consistent with
the constitution, stopped from telling others what they have seen or
experienced. This might also mean injustices
like the ones I outlined might persist and fester, until they explode into a
riot. In the name of domestic
tranquility, they should at least have a chance to be heard. A person who believes they have been wronged
has a right to tell the citizens (who are the true sovereigns of this country),
so that if they are right, we can redress it.
And if you only agree with
that—that illegal immigrants, temporary workers and foreign tourists—have a
right to speak, then this law is already overly broad. And if you recall my last post, if a statute
restricting speech is overly broad, it is unconstitutional.
But things start to get even
worse when you start looking at the definition of Electioneering Communications
found in 52
U.S.C. § 30104, where it says:
(3) Electioneering
communication For purposes of this subsection—
(A)
In general
(i)
The term “electioneering
communication” means any broadcast, cable, or satellite communication which—
(I)
refers to a clearly identified
candidate for Federal office;
(II) is made within—
(aa)
60 days before a general, special, or
runoff election for the office sought by the candidate; or
(bb)
30 days before a primary or preference
election, or a convention or caucus of a political party that has authority to
nominate a candidate, for the office sought by the candidate; and
(III)
in the case of a communication which
refers to a candidate for an office other than President or Vice President, is
targeted to the relevant electorate.
(ii)
If clause (i) is held to be
constitutionally insufficient by final judicial decision to support the
regulation provided herein, then the term “electioneering communication” means
any broadcast, cable, or satellite communication which promotes or supports a
candidate for that office, or attacks or opposes a candidate for that office
(regardless of whether the communication expressly advocates a vote for or
against a candidate) and which also is suggestive of no plausible meaning other
than an exhortation to vote for or against a specific candidate. Nothing in
this subparagraph shall be construed to affect the interpretation or
application of section 100.22(b) of title 11, Code of Federal Regulations.
So, while that is a lot to take
in, I think if you go slow you can pick apart most of it. Most of it doesn’t suffer from the vagueness
problems I have been mentioning, but I think subsection (iii) creates two
problems for those defending these statutes.
First, its overbroad. It says “in
the case of a communication which refers to a candidate for an office other
than President or Vice President, is targeted to the relevant electorate” which
means that when you are talking about a candidate for President or Vice President,
they are not going to look at whether the ad is targeted to the relevant
electorate or not. So imagine a Chinese
citizen living in rural China sends out some leaflets that say that Donald
Trump should be president. Well, that
has little chance of reaching even a single American citizen, let alone moving
the needle to any appreciable degree in the election, and a regulation that prohibits
that seems by definition to be overbroad.
But the second problem is that
this transforms what previously was a content-neutral regulation into a
regulation that discriminates based on content (but not viewpoint). See my previous post for more discussion of
that principle, but that means it has to survive the strict scrutiny test which
requires that it be 1) narrowly tailored to serve 2) a compelling government
purpose. What is the compelling purpose
in preventing rural Chinese from hearing a person’s opinion of the American
Presidential election? How is a law that
would cover that scenario narrowly tailored?
That is something to keep in mind
when the exceptions to that definition:
(B) Exceptions
The term “electioneering communication” does not include—
(i)
a communication appearing in a news
story, commentary, or editorial distributed through the facilities of any
broadcasting station, unless such facilities are owned or controlled by any
political party, political committee, or candidate;
(ii)
a communication which constitutes an
expenditure or an independent expenditure under this Act;
(iii)
a communication which constitutes a
candidate debate or forum conducted pursuant to regulations adopted by the
Commission, or which solely promotes such a debate or forum and is made by or
on behalf of the person sponsoring the debate or forum; or
(iv)
any other communication exempted
under such regulations as the Commission may promulgate (consistent with the
requirements of this paragraph) to ensure the appropriate implementation of
this paragraph, except that under any such regulation a communication may not
be exempted if it meets the requirements of this paragraph and is described in
section 30101(20)(A)(iii) of this title.
First, I would like to focus on
subsection (i) which says “a communication appearing in a news story,
commentary, or editorial distributed through the facilities of any broadcasting
station, unless such facilities are owned or controlled by any political party,
political committee, or candidate.” So
that would appear, for instance, to exempt every foreign broadcast news
station—unless it is owned or controlled by any political party, political
committee or candidate.
So first... wouldn’t that exempt
the BBC? Which is strange, because it
seems that the general thrust of the laws I have been looking at is being
afraid of foreign influence, especially from foreign governments. The BBC—that is, the British Broadcasting Company—is state television. So, they are saying it is okay for state television to endorse a candidate,
but not a political party? On the other
hand, I tend to think that if China’s official state television endorses a
candidate, that this would not fall outside of the exception in subsection (1) because
it would be obviously controlled by a political party, the Communist Party.
Further, that exemption only
applies to broadcast. Traditionally, the
term “broadcast” only refers to the transmission of television waves—you know,
UHF and VHF. It doesn’t typically refer
to cable or satellite (even though both typically transmit through the air at
some point). These exceptions also don’t on their face apply to printed
newspapers, internet news sites, and so on, but then again the statute might
not apply to those things at all, since the definition of “electioneering
communications” requires that it be a “broadcast, cable, or satellite
communication.” As a general rule, that
doesn’t include any of those other forms communication like printed newspapers,
internet news sites, etc., except arguably when I am using a cable-based
internet service, it might arguably be a “cable communication.” Still, where is the sense in exempting that
one kind of communication?
Further, a failure to cover
something can be a constitutional problem, too.
As noted by the Supreme Court in FCC
v. League of Women Voters of California, not only is overbreadth a
problem in constitutional analysis, but so is underinclusiveness. Mind you, it is not typically a violation of
the First Amendment to fail to ban certain
speech as long as that failure is content- and viewpoint-neutral, but it
undermines the credibility of the government when it says “X is such a problem
we must silence speech… well, except
this part of X, that’s totally not a big deal.”
Allowing Congress to regulate elections and election-related expression is
inherently dangerous—there is a danger that under the guise of protecting
democracy, they would instead subvert democracy to maintain their power. Underinclusiveness is evidence that they are
not motivated by protecting democracy—it undermines the sincerity of their
avowed concerns.
Further, the underinclusiveness
problem creates another issue: discrimination among speakers. The fact is this law, as written, gives
certain speakers “privileges” in the marketplace that others don’t
enjoy—namely, the press. So if the BBC
runs an editorial endorsing a presidential candidate, that is legal. But if Theresa May spends her own money on an
ad exhorting Americans to vote for a certain candidate, that is forbidden. Yet, what is the compelling reasons for
allowing British State Television to speak freely, but not their Prime Minister?
Now it is worth taking a moment
to clear up a misconception about the press and the First Amendment. There is a clause that guarantees “freedom of
the press” and it is popular in liberal circles to think that phrase is
designed to protect the institutional press and us ordinary schmucks are not
covered by that clause.
Of course, that whole idea can be
defeated by Common Sense in
conjunction with common sense. You see,
if that interpretation of the First Amendment was correct, then Thomas Paine’s Common Sense is not covered by the First
Amendment. After all, Common Sense was not published in the
institutional press—it was just a pamphlet.
And yet common sense tells us that the Founders were thinking precisely
of their own revolutionary experience when they wrote the First Amendment and
thus Common Sense was probably
exactly the kind of thing they would think was protected. So common sense tells us that any
interpretation that would leave Common
Sense unprotected is wrong. And for
that matter, that entire interpretation of that clause was rejected in Citizens
United. No, freedom of the press belongs
to everyone, whether you are part of the institutional press or not.
So, having established that every
speaker is equally protected by the Fourteenth Amendment one has to look at the
justification for excluding the non-press foreign national from the marketplace
of ideas. Fortunately, the Supreme Court
has addressed the question of restrictions on speakers recently in the case of Packingham v. North Carolina, where
the state had forbidden registered sex offenders from joining social media
where children might be—as in Facebook, Twitter, and so on. The Supreme Court noted that since the
regulation appeared to be content- and viewpoint-neutral, the test would be
whether it was narrowly tailored to serve a significant government interest (as
opposed to a compelling government interest needed if it was not
content-neutral). But what interest
would the government have in treating “the press” differently from any regular
schmuck? What significant interest is
served by saying they should be treated special? I cannot see any such purpose.
The other exception I want to
focus on is found in subsection (iv).
This is what it says, again:
(iv)
any other communication exempted
under such regulations as the Commission may promulgate (consistent with the
requirements of this paragraph) to ensure the appropriate implementation of
this paragraph, except that under any such regulation a communication may not
be exempted if it meets the requirements of this paragraph and is described in
section 30101(20)(A)(iii) of this title.
So basically, this lets the FEC
create additional exceptions, so long as it doesn’t exempt any communication
that “meets the requirements of this paragraph” and is described in another
statute (which we will get to, I promise).
Which, Gosh, that sounds really
questionable constitutionally. Remember
how I said that under-inclusiveness undermines their claim of a compelling
interest. Well, so does this. I haven’t seen a case declaring this, but
logic suggests it. It transforms their argument into “X is so important that we
must suppress speech, except whatever the FEC decides isn’t that important
after all.”
Apart from that, let’s take a
look at those exceptions, which are found in this
regulation:
(c) The
following communications are exempt from the definition of electioneering
communication. Any communication that:
(1) Is publicly
disseminated through a means of communication other than a broadcast, cable, or
satellite television or radio station. For example, electioneering
communication does not include communications appearing in print media,
including a newspaper or magazine, handbill, brochure, bumper sticker, yard
sign, poster, billboard, and other written materials, including mailings; communications over the Internet,
including electronic mail; or telephone communications;
(2) Appears in a
news story, commentary, or editorial distributed through the facilities of any
broadcast, cable, or satellite television or radio station, unless such
facilities are owned or controlled by any political party, political committee,
or candidate. A news story distributed through a broadcast, cable, or satellite
television or radio station owned or controlled by any political party,
political committee, or candidate is nevertheless exempt if the news story
meets the requirements described in 11 CFR 100.132(a) and (b);
(3) Constitutes
an expenditure or independent expenditure provided that the expenditure or
independent expenditure is required to be reported under the Act or Commission
regulations;
(4) Constitutes
a candidate debate or forum conducted pursuant to 11 CFR 110.13, or that solely
promotes such a debate or forum and is made by or on behalf of the person
sponsoring the debate or forum; or
(5) Is paid for
by a candidate for State or local office in connection with an election to
State or local office, provided that the communication does not promote,
support, attack or oppose any Federal candidate. See 11 CFR 300.71 for
communications paid for by a candidate for State or local office that promotes,
supports, attacks or opposes a Federal candidate.
(emphasis added). Did you catch that? The entire internet is exempted from
this. That is a pretty large
exemption. So if you are watching, Legion on FX, and the evil Russians run
an ad saying vote for Trump, that is a crime.
But if you are watching Legion on
Hulu, and the exact same ad runs, that is legal. That does answer my previous question of
whether cable internet is covered or not (it isn’t)—but holy crap, it exempts
so much, it really makes you wonder what is the point.
And that again gets to that Packingham, issue: how is this narrowly
tailored to serve a significant interest?
What is the significant interest in saying TV ads need to regulated while
the entire Internet is not? Indeed, in Packingham, the Supreme Court said that
While in the past
there may have been difficulty in identifying the most important places (in a
spatial sense) for the exchange of views, today the answer is clear. It is
cyberspace — the “vast democratic forums of the Internet” in general ... and
social media in particular. Seven in ten American adults use at least one
Internet social networking service. Brief for Electronic Frontier Foundation et
al. as Amici Curiae 5-6. One of the most popular of these sites is Facebook,
the site used by petitioner leading to his conviction in this case. According
to sources cited to the Court in this case, Facebook has 1.79 billion active
users. Id., at 6. This is about three times the population of North America.
So if you are speaking to the
Supreme Court, it would be hard to explain to them why “the most important
place[] ... for the exchange of views” should be exempted but it was vitally
important to suppress broadcast, cable and satelite. Again, I am not saying that the internet shouldn’t be exempted, only that the broadcast,
cable and satellite networks shouldn’t be regulated this way, either and its
hard to justify their special treatment.
But we are not out of the woods
yet. The exception also can’t offend
this part:
(iv)
any other communication exempted
under such regulations as the Commission may promulgate (consistent with the
requirements of this paragraph) to ensure the appropriate implementation of
this paragraph, except that under any such regulation a communication may not
be exempted if it meets the requirements of this paragraph and is described in section
30101(20)(A)(iii) of this title.
Now the easy part of this is what
“is described in section
30101(20)(A)(iii) of this title” which is this:
a public
communication that refers to a clearly identified candidate for Federal office
(regardless of whether a candidate for State or local office is also mentioned
or identified) and that promotes or supports a candidate for that office, or
attacks or opposes a candidate for that office (regardless of whether the
communication expressly advocates a vote for or against a candidate)
That’s relatively
understandable. But it also has to meet
the requirement so “this paragraph” which raises the question: what does “this
paragraph” refer to?
Look at the entire section
regarding exceptions again:
(B) Exceptions
The term “electioneering communication” does not include—
(i)
a communication appearing in a news
story, commentary, or editorial distributed through the facilities of any
broadcasting station, unless such facilities are owned or controlled by any
political party, political committee, or candidate;
(ii)
a communication which constitutes an
expenditure or an independent expenditure under this Act;
(iii)
a communication which constitutes a
candidate debate or forum conducted pursuant to regulations adopted by the
Commission, or which solely promotes such a debate or forum and is made by or
on behalf of the person sponsoring the debate or forum; or
(iv)
any other communication exempted
under such regulations as the Commission may promulgate (consistent with the
requirements of this paragraph) to ensure the appropriate implementation of
this paragraph, except that under any such regulation a communication may not
be exempted if it meets the requirements of this paragraph and is described in
section 30101(20)(A)(iii) of this title.
So, is “this paragraph” a
reference to subsection (iv)? Because,
bluntly, that subsection is not even a sentence, let alone a paragraph as the
term is ordinarily used. But then that
would suggest this entire quoted subsection (B) is “this paragraph.” Or maybe even more?
Further, the term “requirements
of this paragraph” is non-sensical—the only requirements are those needed to
qualify for an exception. So it seems to
translate to “if your exception meets the requirements for getting an exception
it cannot be an exception…?” Regardless
of how expansively we interpret the term “this paragraph” the word “requirements”
doesn’t make much sense.
Put them together, with what “is
described in section 30101(20)(A)(iii) of this title” I mentioned a moment ago,
and things get bizarre. For instance, if
you interpret “this paragraph” as including subsection (iii), then a candidate’s
debate may not be exempted if it “meets the requirements of this paragraph and
is described in section 30101(20)(A)(iii) of this title.” So the requirements of that subsection of
that paragraph, applied there, would mean that it would cover a candidate
debate. And as I just mentioned 52
U.S.C. § 30101(20)(A)(iii) describes:
a public
communication that refers to a clearly identified candidate for Federal office
(regardless of whether a candidate for State or local office is also mentioned
or identified) and that promotes or supports a candidate for that office, or
attacks or opposes a candidate for that office (regardless of whether the
communication expressly advocates a vote for or against a candidate)
So that would mean that in a
candidate debate, you either 1) cannot clearly identify the candidates, or 2)
you must prohibit the candidates from “promoting or supporting a candidate” or “attack[ing]
or oppos[ing] a candidate,” which kind of goes against the entire idea of a
debate. “I am a candidate for president,
but I am indifferent about getting your vote!”—that would be absurd, and when
reading ambiguous statutes, the courts avoid the absurd interpretation. So that would suggest that “this paragraph”
only means subsection (iv).
But at the same time, it is also
absurd to read the phrase “this paragraph” to mean only subsection (iv), because
it raises the question “what requirements?”
There didn’t seem to be any requirements in subsection (iv). I suppose you could say the requirement is
that is a regulation created by the FEC, but in statutory drafting, the more
common phrase to use is “such regulations” instead of that “requirements” mess. Still my gut says that the best reading is to
limit it to subsection (iv), but a judge could easily read it differently.
In other words, this exception is
a mess, which creates another void for vagueness problem.
Now, let’s go back to the issue
of internet expression with a hypothetical.
Imagine that a foreigner, an evil Russian, ran an ad on Facebook saying “Vote
for Bernie Sanders” in the crucial thirty days before a primary. Would that be criminalized under the law?
Well, first, you have to ask if
it is an electioneering communication at all.
Under § 30104(f)(3)(A)(i), it has to be on “broadcast, cable, or satellite
communication.” As I noted before, I am
not sure whether an internet cable transmission counts as a “cable
communication.” But, if it does, the
remaining requirements are met pretty clearly.
So, still in that hypothetical,
we ask if an exception applies. The only
one that would seem to apply is the regulatory exception, where they said communications
are excepted from the term “electioneering communication” if it is one that
Is publicly
disseminated through a means of communication other than a broadcast, cable, or
satellite television or radio station. For example, electioneering
communication does not include communications appearing in print media,
including a newspaper or magazine, handbill, brochure, bumper sticker, yard
sign, poster, billboard, and other written materials, including mailings; communications
over the Internet, including electronic mail; or telephone communications;
So that would seem to fall into
the exception because it is internet communications. Now, what about that exception to the
exceptions I have been talking about above?
One view is that such a Facebook
ad would be covered by exception to the exception (meaning it is covered by the
statute, and doesn’t fall into any proper exception), because it is a
communication arguably described in “this paragraph” even if we only interpret
it to mean subsection (IV) and obviously it would be supporting a candidate.
But there is another radically
different way to look at that regulatory exception: as not literally an exception,
so much as an interpretation of § 30104(f)(3)(A)(i), which said that
electioneering communications have to be on “broadcast, cable, or satellite
communication.” Look at how the
regulation creating this “exception” reads.
It is literally saying that one exception is, more or less, “stuff not
actually covered by the statute at all.”
Then it goes on to list some examples of what is not covered. Some of those are obviously not covered. A billboard or an actual printed newspaper is
obviously not broadcast, cable, or satellite communication. The only debatable part of that is exempting
internet, email and phone communications (because there is such a thing as
cable-based phone service). And there is
a doctrine that says that regulatory agencies can put out regulations that
interpret what a term in a statute means, and courts will defer to those
interpretations if the term is ambiguous in the statute. So rather than really being seen as an
exception that is subject to the “exception to the exceptions” subsection, it
might instead be seen as an interpretation of the statute, which the courts are
supposed to defer to.
The additional notion to consider
in all of this is the doctrine of lenity.
This doctrine says that when dealing with an ambiguous criminal statute,
courts should interpret it narrowly.
These statutes have criminal consequences, so that would seem to suggest
that you have to interpret “cable” as not applying to the internet (or cable
phones), under this approach, in order to narrowly interpret that term.
So, my gut says that in this
hypothetical, that no crime was committed.
But I cannot be sure if a judge would see all of it the same way.
There are several bottom lines you
can get, then, from that analysis.
First, is your brain hurting
yet? I tried to walk you slowly through
that analysis, but as a trained lawyer who is used to reading statutes, that
was difficult and you saw there were some parts of this that still don’t make
full sense to me. If you are a reader
who doesn’t literally do this sort of thing for a living, what chance would you
have to work through all that by yourself?
This goes to a larger criticism of the entire campaign finance
structure: it makes it so that a novice has a very hard time navigating all of
this. So, as a practical matter, if you
are running for political office, you have
to hire a lawyer, thus incurring a cost many cannot ordinarily afford. That might not be unconstitutional in and of
itself, but it does seem wrong. We are
supposed to be a government “of the people,” in Lincoln’s immortal words, which
suggests that it shouldn’t be hard for a regular person to run for office, and
yet one effectively cannot run without hiring a lawyer. It is decidedly against my interests as a
lawyer to say this, but that is wrong and should change.
Second, that would seem to
implicate the issue of vagueness. If a
trained lawyer has trouble figuring out what these statutes mean, what chance does
a lay person have?
Add that to the other concerns—the
fact that the statute is overbroad in its reach and underinclusive as well—and I
believe that this statute is unconstitutional and that the courts will
eventually see it as such and strike it down.
So, we are two for two on laws
implicated by the Mueller “Russian” indictment.
But that is a “stacked” analysis.
I focused on the unconstitutional laws first to set the table for
looking at the indictment as a whole, which is what I plan to do next. So, stay tuned. We are not quite done with this indictment.
---------------------------------------
My wife and I lost our jobs due
to the harassment of convicted terrorist (and adjudicated statutory rapist)
Brett Kimberlin, including an attempt to get us killed and to frame me for a
crime carrying a sentence of up to ten years. I know that claim sounds fantastic, but if you
read starting here,
you will see absolute proof of these claims using documentary and video
evidence. If you would like to help in
the fight to hold Mr. Kimberlin accountable, please hit the donation link on
the right. And thank you.
Follow me at Twitter @aaronworthing, mostly for
snark and site updates.
---------------------------------------
Disclaimer:
I have accused some people,
particularly Brett Kimberlin, of reprehensible conduct. In some cases, the conduct is even criminal. In all cases, the only justice I want is
through the appropriate legal process—such as the criminal justice system. I do not want to see vigilante violence
against any person or any threat of such violence. This kind of conduct is not only morally
wrong, but it is counter-productive.
In the particular case of Brett
Kimberlin, I do not want you to even contact him. Do not call him. Do not write him a letter. Do not write him an email. Do not text-message him. Do not engage in any kind of directed
communication. I say this in part
because under Maryland law, that can quickly become harassment and I don’t want
that to happen to him.
And for that matter, don’t go on
his property. Don’t sneak around and try
to photograph him. Frankly try not to
even be within his field of vision. Your
behavior could quickly cross the line into harassment in that way too (not to
mention trespass and other concerns).
And do not contact his
organizations, either. And most of all,
leave his family alone.
The only exception to all that is
that if you are reporting on this, there is of course nothing wrong with
contacting him for things like his official response to any stories you might
report. And even then if he tells you to
stop contacting him, obey that request. That this is a key element in making out a
harassment claim under Maryland law—that a person asks you to stop and you
refuse.
And let me say something else. In my heart of hearts, I don’t believe that
any person supporting me has done any of the above. But if any of you have, stop it, and if you
haven’t don’t start.
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