March 29, 2023

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In the News

Philanthropy Roundtable: Empire Center Fights for Donor Privacy in New York

By Tim Hoefer

....[J]oined by the Institute for Free Speech and represented by our partners at the Government Justice Center, the Empire Center filed a formal demand letter demanding that [the New York] OAG certify the destruction of any documents it is keeping in violation of the First Amendment as a result of the 2021 [AFPF v. Bonta] SCOTUS decision. The only way we will know if Attorney General James is complying with the laws that she’s charged with upholding is for her office to comply with our demand letter.

Supreme Court

SCOTUSblog: Justices divided on the constitutionality of the federal law that bans “encouraging” immigrants to remain unlawfully in the United States

By Amanda Shanor

.....Both oral advocates faced fairly cold receptions on Monday morning in United States v. Hansen when the Supreme Court heard argument on whether 8 U.S.C. § 1324(a)(1)(iv), the federal law that criminalizes “encouraging or inducing” an immigrant to come or remain in the United States unlawfully, violates the First Amendment’s guarantee of freedom of speech.

The argument also shed more light on the newer justices’ views on the freedom of speech. The newly reconfigured Court appears less strongly speech-protective than its recent predecessors — and perhaps interested in making big moves to constrain or even do away with the overbreadth doctrine. That doctrine allows a defendant to whom a law can be constitutionally applied to nonetheless challenge it as unconstitutional if the law makes a substantial amount of protected speech illegal, so that uncertainty about the scope of the law may chill protected speech.

Congress

Reason: Banning TikTok Is a Power the Federal Government Doesn't Deserve

By Robby Soave

.....Last week, members of Congress relentlessly grilled Shou Zi Chew, the CEO of Chinese social media giant TikTok...

Chew testified before Congress that political dissent is widely available on TikTok, but there is plenty of evidence that the social media platform has suppressed content shown in the U.S. at the Chinese government's behest.

China isn't the only one playing that game. The U.S. government has also shown great interest in controlling what information its citizens consume online. Both the Twitter Files and the Facebook Files have shown that American social media companies have faced relentless pressure to restrict speech on controversial subjects like COVID-19 vaccines, Hunter Biden, and the 2020 election. Federal agencies including the State Department, Department of Homeland Security, Centers for Disease Control and Prevention (CDC), the FBI, and even the White House have all communicated with moderators at social media companies, urging them to take action against legal speech.

The U.S. government's behavior on this front has been so disreputable—so thoroughly at odds with the principles of the First Amendment—that all Americans should be deeply skeptical of efforts by federal lawmakers and bureaucrats to claim for themselves even more power over tech platforms. But that's precisely the point of the TikTok hearings: to give Congress a pretext to unilaterally ban TikTok.

The States

New York Times: Costly Court Race Points to a Politicized Future for Judicial Elections

By Reid J. Epstein

.....Thirty million dollars and counting has poured into the campaign for a swing seat on Wisconsin’s Supreme Court, with TV ads swamping the airwaves...

“For the typical voter, 90 percent of what they learn about this election is probably going to wind up being from campaign ads,” said Ben Wikler, the chairman of the state Democratic Party...

Justice Kelly’s biggest hurdle may be the financial disparity — which is the result of campaign finance rules written by Wisconsin Republicans in 2015.

Before then, the state provided modest public funding for statewide judicial campaigns and capped the amount of money candidates for any office could receive from the state parties.

But that year, Gov. Scott Walker and the Republican-led Legislature passed a law allowing individual donors to give unlimited amounts to the state parties and allowing the state parties to transfer unlimited sums directly to candidates.

This, combined with the fund-raising acumen Mr. Wikler brought for Democrats when he became party chairman in 2019, has put Republicans at a significant financial disadvantage in races where their billionaire donors do not underwrite candidates.

Republicans now find themselves bemoaning the spending imbalance that has allowed Judge Protasiewicz to broadcast more than $10 million in television ads while Justice Kelly has spent less than $500,000 on them.

Judge Grogan lamented that Republicans did not have access to the national fund-raising network that has propped up the Protasiewicz campaign. But she declined to say whether it had been a mistake for Republicans and Mr. Walker to lift the cap on contributions to state parties, and would not offer an opinion about whether donors should be allowed to make unlimited contributions.

New Jersey Monitor: Election watchdog chief dodges discipline for emails deemed discriminatory

By Dana DiFilippo

.....The head of the state’s election law watchdog will not be disciplined for allegations of workplace homophobia, racism, and insubordination after commissioners cleared him of wrongdoing during a public hearing Tuesday.

Jeff Brindle, executive director of the Election Law Enforcement Commission since 2009, testified in his own defense during the 90-minute hearing at the commission’s Trenton office, telling the two commissioners mulling his fate that an email he sent in October mocking National Coming Out Day is protected by the First Amendment and “not an anti-gay comment.”

He accused Gov. Phil Murphy and his administration of working to orchestrate his ouster since early November, after he published a commentary on Insider NJ about dark money in politics that he said “struck a chord” with the governor’s office.

FIRE: Florida city bans ‘political’ events of 10-plus people in all parks, streets, and sidewalks

By Aaron Terr

.....Section 38–87 of the Belleair Beach City Code requires any group of 10 or more people “who desire to have a gathering in any city park or playground or other public property” to obtain a permit from the city. But that same ordinance also prohibits permits “for the conduct of any commercial, political, or organized event by any person, group or organizer.” The relevant part of the code makes doubly clear that this provision applies to all “city-owned property.”

FIRE wrote the city yesterday to explain that the ordinance violates the First Amendment.

Washington Post: D.C. campaign finance office tosses complaints about Silverman’s poll

By Michael Brice-Saddler

.....The D.C. Office of Campaign Finance has dismissed a third and final complaint related to former D.C. Council member Elissa Silverman’s decision to poll last year’s Ward 3 Democratic primary election, concluding a controversial saga that the erstwhile lawmaker says cost her a seat on the council.

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