October 3, 2018

New amicus brief defending your freedom of the PRESS

First they came for the charities, but I wasn’t a charity. Then they came for me Retweet

Should you need a license to exercise your freedom of the press? If your answer is NO, please support our amicus brief for AFPF (Americans for Prosperity Foundation) v. Becerra

If our brief doesn’t get filed then our unique arguments won’t be presented (see below). We’re setting ourselves up for a win-win situation…

  • If the appeals court rejects AFPF’s request for hearing, that clears the way for the U.S. Supreme Court to hear the case.
  • If the appeals court agrees to an en banc (the entire circuit in session) hearing, then we can secure a strong dissenting opinion from one of the judges. That too will improve the odds that the Supreme Court takes the case!

So here’s the issue… A license is a state dictate that you must do one or more of the following things before you can exercise a certain “freedom.”

  • Complete a course of study
  • Pass a test
  • File reports
  • Pay a fee or tax

Should you have to do any of these things before you either speak your mind or publish an opinion? The answer is clearly NO, but bureaucrats in multiple states think otherwise.

Most states require charities to file information and/or pay a fee before soliciting donations. In other words…

Charities must gain a license (permission) before they can exercise their freedom of the press in those states. But New York and California do something even worse…

The attorneys general in those states compels charities to turn over their donor lists before gaining permission (a license) to practice their freedom of the press. There are several problems with this scheme, so…

We’ve already responded with amicus briefs in both New York and California. AFPF v. Becerra is the California case. And the AFPF legal team is making speech and association arguments. We think the association argument is strong because groups of people are needed to operate and fund charities. But the speech argument is potentially weak because…

The enemies of freedom will respond by saying that neither a donor list nor a direct mail funding appeal is speech, just as in campaign finance law where various courts have repeatedly ruled that money is not speech. That’s why…

We’re needed to make the free PRESS argument!

The First Amendment bars federal or state governments from licensing press activities. California’s Attorney General cannot require donor lists or fees in order for charities to exercise their freedom of the press.

This issue is important not only for charities but also for your right to support candidates. If we can make progress with freedom of the press when it comes to charities, then it paves the way for our press argument to have more impact on campaign finance laws.

We’ve already had a huge influence in his area!

Freedom of the press was the focus of the case we took to the Supreme Court (Paul v. FEC, consolidated into McConnell v. FEC). And our argument played the starring role in the landmark, Citizens United decisionwhich we won. Everyone else was arguing for the freedom of speech in those cases. We were the only ones making a freedom of the press argument. Please understand…

People get this wrong: You actually CAN shout fire in a crowded theater. You might get arrested if there is no fire and people are harmed, but no previous tools or planning is necessary to commit the act. By comparison…

If you wanted to hand out flyers with the word “FIRE” printed on them, you’d need a capital tool (printer) and a medium (paper). Both cost money. And The State can logistically impede access to both things.

This bears repeating…

  • Speech can be uttered at any time. No investment is required.
  • But press rights require planning and tools. You need a press.

In modern terms, when you hear “press,” think of the words publication and broadcast. Both things require tools — paper and transmitters.

The need for tools to exercise your press rights is the key distinction!

  • Money may not be speech
  • But money can become a press or a transmitter, and it is absolutely essential for both

And the planning, expense, and material aspects mean press rights are easier for The State to violate through regulations and taxes. Indeed, when the First Amendment was written, the Stamp Act (a tax on printed paper products) and other licensing schemes to silence newspapers were a fresh memory.

Here’s the final crucial point…

  • YOU and the New York Times have the exact same freedom of the press right.
  • The political campaign to which you donate also possess the same freedom of the press right as the corporate-owned Washington Post or MSNBC.

In other words, donors have the same rights as stockholders of the institutional press.

In AFPF v. Becerra

California claims they need access to charitable donor lists in order to fight fraud. Nonsense. They can take fraud cases to court whenever the evidence justifies it.

The actual reason for requiring the donor names is to intimidate citizens who hold views contrary to those of elected officials and bureaucrats. The hope is to place a “chilling effect” on the fundraising of non-progressives.

This led a federal judge, ruling at an earlier stage of this case, to compare the actions of these two progressive attorneys general to the era of segregationist Alabama.

We’re looking to file an amicus brief in the AFPF case this week! Remember, the purpose of this brief is to obtain what’s called an en banc hearing — a session before all the judges of the circuit.

This is part of a strategy to make the AFPF case one of those fortunate few that someday get heard by the Supreme Court.

Please use this secure form to make a TAX-DEDUCTIBLE contribution and…

Make this Free Press amicus a reality

DownsizeDC.org partners with the Downsize DC Foundation (home of the Zero Aggression Project) so that your contributions can be tax-deductible. When you click the button above, you’ll be taken to the Zero Aggression Project contribution form.

Thank you for your support and for being an ACTIVE DC Downsizer,

Jim Babka & Perry Willis
DownsizeDC.org, Inc.
& Downsize DC Foundation (home of The Zero Aggression Project)

P.S. To file this case, we’ll work through other organizations (as we have in the past). Jim Babka sits on the board of FSC (Free Speech Coalition). He’s on the steering committee for it, as well as its companion group the FSLDEF (Free Speech Legal Education and Defense Fund). The Olson firm is the legal counsel. And DownsizeDC.org usually/annually extends a modest grant to FSC, and Downsize DC Foundation a grant to FSLDEF. That’s what we’ll do in this case.

P.P.S. Your First Amendment rights don’t require a special appeal to any governing body to be recognized. They belong to you and the point of the First Amendment is to make that explicit.

  • In a system of delegated and enumerated powers, there’s no role for The State to regulate press rights.
  • The First Amendment goes further to make it explicit: Congress shall make no law.

FSC and FSLDEF have filed several amicus briefs in the AFPF and Thomas Moore challenges in California, as well as the Schneiderman case in New York. Help us continue this work until we’ve pressed this all the way through to the U.S. Supreme Court.

If your comment is off-topic for this post, please email us at feedback@downsizedc.org


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