April 10, 2023

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In the News

"The Megyn Kelly Show": The Weak Case Against President Trump, with Byron Donalds, Arthur Aidala, Dave Aronberg & Brad Smith

.....President Donald Trump has been arrested, arraigned, and we've seen the indictment. And what did we find? Megyn Kelly explains how weak the case is against former President Trump, before welcoming in legal experts Arthur Aidala, Dave Aronberg, and Brad Smith to talk about whether the whole case will get dismissed, the need to know what the underlying felony is, if a campaign finance violation is even applicable, whether the hush money payment could be proven to be trying to influence the election, the media circus inside and outside the courtroom, whether Michael Cohen could conceivably testify, Trump's comments about the judge and DA, and more.

Forbes: Uniform Public Expression Protection Act Adopted By Utah To Update Its Anti-SLAPP Laws

By Jay Adkisson

.....Utah has adopted the Uniform Public Expression Protection Act (UPEPA), as found at Utah.Stat. § 78B-25-101,et seq., and which becomes effective for actions brought on or after May 3, 2023. This represents a substantial upgrade for Utah's Anti-SLAPP Act. The prior Utah Anti-SLAPP law had been rated as "D-" (almost worthless) by the Institute for Free Speech which tracks such things. The adoption of the UPEPA should take Utah into the "A-" range under the IFS's ratings with the rest of the UPEPA states.

Supreme Court

Wall Street Journal: The Smearing of Clarence Thomas

By The Editorial Board

.....Justice Thomas would have been obliged to disclose gifts that posed a conflict of interest involving cases that would be heard by the High Court. But there is no evidence that Mr. Crow has had any such business before the Court, and Mr. Crow says he has “never asked about a pending or lower court case.”

The most ProPublica can come up with is that “Crow has deep connections in conservative politics.” Oh dear. One hilarious section reports that a painting at Mr. Crow’s New York resort includes Mr. Crow, Justice Thomas and three friends smoking cigars. One of the friends is Leonard Leo, “the Federalist Society leader regarded as an architect of the Supreme Court’s recent turn to the right,” ProPublica says.

This conspiracy is so secret that it’s hiding in plain sight. Can anyone imagine such a story ever being written about a liberal Justice on the Court?

The Courts

New York Times: In Hundreds of Jan. 6 Cases, Justice Dept. Wins a Battle (for Now)

By Alan Feuer

.....A federal appeals court on Friday upheld the viability of a criminal charge that has been used against hundreds of people indicted in connection with the attack on the Capitol on Jan. 6, 2021 — and that congressional investigators have recommended using in a potential criminal case against former President Donald J. Trump.

The decision by the U.S. Court of Appeals for the District of Columbia means that the charge — the obstruction of an official proceeding before Congress — can continue to be used in the Justice Department’s prosecutions related to the Jan. 6 riot...

Defense lawyers have long maintained that prosecutors overreached in their use of the law, stretching the statute beyond its intended scope and using it to criminalize behavior that too closely resembled protest protected by the First Amendment. In December, they challenged the viability of the law in arguments in front of the appeals court, making various claims that the charge was a poor fit for what happened at the Capitol and that it should not have been used against any of the rioters.

In its ruling, the appellate panel acknowledged that the obstruction count had never been used in the way it has been used in Jan. 6 cases, but decided that it was nonetheless a viable charge in the riot prosecutions. The ruling reversed decisions made in three separate Jan. 6 cases by Judge Carl J. Nichols, the only judge in Federal District Court in Washington, where the cases are being heard, to have struck down the obstruction charge.

Courthouse News: Ninth Circuit upholds California ban on indiscriminate honking

By Sam Ribakoff

.....The First Amendment doesn't protect Californians who honk their car horns in support of street protests, or for any other reason besides alerting other drivers of safety concerns on the road, a divided Ninth Circuit panel ruled Friday.

Post Crescent: Judge prevents Neenah from enforcing sign ordinance while federal case proceeds

By Duke Behnke

.....The city of Neenah will be prevented from enforcing its sign ordinance while a federal lawsuit challenging the constitutionality of the ordinance proceeds in U.S. District Court.

A preliminary injunction issued Thursday by Judge William Griesbach means the city cannot take action against plaintiffs Tim and Megan Florek or others for displaying "Don't Rezone Shattuck Middle School Leave R-1 Alone" yard signs beyond the time limit prescribed in the ordinance.

Neenah's municipal code restricts temporary, portable signs on residential properties to "30 days within a 90-day period."

The Floreks contend the enforcement of the ordinance violates their First Amendment rights to free speech. They are represented by the Wisconsin Institute for Law & Liberty of Milwaukee.

Reason (Volokh Conspiracy): Justin Fairfax (Former Va. Lt. Gov.) Loses Libel Lawsuit Against N.Y. Public Radio

By Eugene Volokh

.....From Judge Anthony Trenga's decision today in Fairfax v. N.Y. Public Radio (E.D. Va.):

FEC

New York Times: For DeSantis, Overflowing War Chest Obscures the Challenges Ahead

By Rebecca Davis O’Brien

.....Mr. DeSantis also has a campaign-finance conundrum on his hands: Most of his money — more than $80 million, as of the end of February — is tied up in a Florida political action committee. He is prohibited by law from transferring that “soft” money — dollars raised without federally imposed limits — into a presidential campaign.

Any move to use that money in support of his national ambitions — including transferring it to an affiliated super PAC, called Never Back Down — would still be likely to raise red flags among campaign finance watchdogs, although campaign finance experts said the Federal Election Commission, which has for years been deadlocked between the parties, was unlikely to act on it.

“Can he take that money, which was raised through his state PAC, and use it to advance his presidential campaign directly or through a federal super PAC supporting him?” said Saurav Ghosh, a former F.E.C. enforcement lawyer who is now the director of federal campaign finance reform at the Campaign Legal Center, a watchdog group. “The common-sense answer, and the law, says no.”

Mr. Ghosh added, “The unfortunate reality is that the F.E.C. is probably not going to do anything about it.”

In a statement, the F.E.C.’s chairwoman, Dara Lindenbaum, and vice chairman, Sean Cooksey, said any assertion that the commission’s bipartisan structure prevented it from fulfilling its mission was “misinformed.”

“Without commenting on any specific case, commissioners assess each enforcement matter on its merits, and we reach agreement in nearly 90 percent of them,” they said.

The Media

Daily Beast: Fox News v. Dominion Is a Lose-Lose for First Amendment

By Lili Levi

.....Many pundits are already calling the trial for Dominion, and but in fact this is a case in which—regardless of what happens—nobody truly wins, particularly the press and society at large.

Why? Because defamation law is and should be concerned with the protection of individual reputation, but plaintiffs in recent cases have started to frame their claims as weapons to fight democracy-distorting disinformation. Dominion is a case in point: the company has cast itself as an intrepid combatant against electoral disinformation that has been weaponized by the conservative press for partisan political reasons.

But despite the surface appeal of this new way to fight viral falsity, the new anti-disinformation frame brings with it serious democratic costs without clear corresponding benefits. It also distracts from real issues about press rights under law.

To be sure, disinformation is a critical social problem that exacerbates partisan divisions and erodes democracy. But defamation lawsuits cannot credibly stem the systemic tide of disinformation. They cannot authoritatively establish any broad truths in contested political terrain. What they can do is threaten powerful chilling effects for the press and possible reduction in legal protections under the First Amendment. The game is not worth the candle.

Online Speech Platforms

Reason: Elon Musk Throttles Substack, Clashing With Twitter Files' Matt Taibbi

By Robby Soave

.....Well, it was fun while it lasted. The professional relationship between billionaire Elon Musk, the owner of Twitter, and independent journalist Matt Taibbi hit a serious and possibly irreparable snag late last week following Musk's quixotic decision to suppress links to Substack.

Politico: Twitter fails to report some political ads after promising transparency

By Jessica Piper

.....Elon Musk took over Twitter last fall with a pledge of transparency for the social media giant — but so far political advertising on the platform has been anything but forthcoming.

Twitter has failed to disclose some political ads running on its site since early March, according to a review of its activity by POLITICO. At least three promoted fundraising tweets were not included in Twitter’s own data, seemingly contradicting the company’s policies and raising doubts about the integrity of the platform’s data and how many other political ads could go unreported.

Washington Post: Meta won’t say if politicians can post AI-made fakes without warnings

By Isaac Stanley-Becker

.....Late last month, political campaign operatives wrote to Meta, the owner of Facebook and Instagram, asking how the social media giant planned to address AI-generated fake images on its platforms.

The inquiry, described by people with knowledge of it, testified to growing concern about AI technology’s impact on American democracy among some of the top strategists preparing for the 2024 election...

According to people familiar with the exchange, who spoke on the condition of anonymity to share details of private communications, a Meta employee replied to the operatives saying that such images, rather than being treated as manipulated media and removed under certain conditions, were being reviewed by independent fact-checkers who work with the company to examine misinformation and apply warning labels to dubious content. That approach unsettled the campaign officials, who said fact-checkers react slowly to viral falsehoods and miss content that is rapidly duplicated, coursing across the online platform.

The approach may also come with a significant carve-out for candidates, officeholders and political parties. Meta has exempted politicians from fact-checking, under a system that company executives have defended by saying that political speech is sacrosanct.

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