Old Dominion News

One way to smoke out censorship-by-proxy efforts initiated by the federal government is to establish a mandatory reporting regime, according to Michael Columbo, a Dhillon Law Group partner.

“If a government official requests, demands or encourages a private party to limit or restrict its provision of services to a third party based on that third party's protected speech or protected associational activities, then that official has to make a report,” said Columbo, who is also a member of the Republican National Lawyers Association (RNLA) Board of Governors.

Columbo made his comments at the Republican National Lawyers Association conference May 12.

The Dhillon Law Group, founded by Harmeet Dhillon, specializes in election law and defending First Amendment rights in California, New Jersey, New York, Florida and Virginia.

Columbo, who is based in San Francisco, was among the attorneys lecturing on a panel titled "Speech Wars: Regulation of Speech by State Actors and Private Entities. They discussed the five obstacles to "vindicating First Amendment Rights.

"You'd want penalties for government officials who don't carry out their reporting obligations," he said. "And you'd want those penalties to last at least six years so you can make sure that a single presidential administration can't shield its own officials and employees from compliance with the disclosure regime. 

"There would be a very short, easy reporting form, and the Office of Management and Budget, in turn, would publish all these reports on a government website that's available to the public," he added.

Columbo pinpointed the controversy of such an action by the federal goverment.

“However degraded our culture of free speech has become, in general, people are still wary of the government acting in this fashion," he said. "Government officials are still embarrassed when it comes to light, and they still recognize that it represents for them a very potent political liability.” 

New Civil Liberties Alliance senior litigation counsel John Vecchione and Baker & Hostetler partner Andrew Grossman were also speakers on the panel. RNLA DC Young Lawyers chair Darby Thorne moderated.

"You'd want to have some type of redactions like in a FOIA request for confidential materials and you would also want to redact personal identifying information about the people who are being victimized by the censorship-by-proxy so that you're not effectively doxing them," Columbo added. "You would also want to have some type of notification process. Since you're removing the personal identity of the victims, you would want to provide notification to them directly."

Obstacles to vindicating First Amendment Rights include not enough judges, imperfect laws, risk, money and ignorance of and indifference to free speech principles, said Vecchione, who cited the case of the State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden Jr. as one egregious example.

“Sunshine is quite potent in this area of censorship by proxy,” Columbo said about creating a mandatory reporting regime. “The most promising approach is simply transparency."