The Latest News from the Institute for Free Speech April 21, 2023 Click here to subscribe to the Daily Media Update. This is the Daily Media Update published by the Institute for Free Speech. For press inquiries, please contact [email protected]. In the News Boston Globe (LTE): We shouldn’t be limited in pooling our money in political speech By David Keating .....Your recent editorial (“Ways to combat dark money in Massachusetts politics,” Opinion, April 13) missed the mark in citing Attorney General Maura Healey for not advancing a ballot measure limiting contributions to any independent political committee to $5,000. Why should a state attorney general, who is sworn to uphold the Constitution, advance a blatantly unconstitutional ballot measure? Doing so would be as improper as advancing a measure that would outlaw birth control. Likewise, the proposed ballot measure limiting independent groups from speaking about candidates is clearly unconstitutional under the First Amendment. All 30 federal appellate judges who have ruled on similar laws reached the same conclusion as the court in SpeechNow.org v. Federal Election Commission, the US Court of Appeals for the District of Columbia Circuit case that professor Lawrence Lessig referenced, and a case in which I was a plaintiff. Lessig’s argument is unpersuasive legally and philosophically. Americans who want to pool their money and speak about politicians shouldn’t be limited. If a corrupt bargain is made, prosecute the politician who took the bribe and the person who gave it. But don’t take away our rights to assemble and speak or publish our views about politicians. Tell Me How This Ends: Fill Out Your Form Before You Have an Opinion By Chris Bray .....I spoke this morning with David Keating, the president of the extraordinarily important Institute for Free Speech, about the indictment of four U.S. citizens for the alleged crime of serving as agents of Russian interests. The indictment, Keating said, isn’t over the speech acts, and it’s not for accepting Russian money. “There’s no law that says you can’t speak and take money from a foreign person or a foreign government,” he said. But there is a law — FARA — that imposes a reporting requirement for advocacy undertaken with foreign influence or support. The prosecution of Americans as Russian agents, in this instance, is because of their paperwork crime: They didn’t fill out a FARA form. If they had, they wouldn’t be facing an indictment. “I think the prosecution of the Americans here is just ridiculous,” Keating said. FARA is ambiguous, subject to selective prosecution, and highly weaponizable for partisan interests. Americans who served in Afghanistan, Keating noted, came home and advocated for the rescue of Afghans who worked with the U.S. military and faced the danger of Taliban retribution. Were they advocating for the interests of foreign nationals? Can they be prosecuted for the failure to register as foreign agents? “All of that activity arguably was covered by FARA,” Keating says. Supreme Court SCOTUSblog: Justices hear “true threat” protected speech case By Amy Howe .....The Supreme Court heard oral argument on Wednesday in the case of a Colorado man who was sentenced to four-and-a-half years in prison for stalking based on the Facebook messages that he sent to local musician Coles Whalen. At issue in the case is how courts should determine what constitutes “true threats,” which are not protected by the First Amendment. At the end of nearly two hours of debate, the justices generally appeared skeptical of Colorado’s contention that courts should use an objective test, that looks at whether a reasonable person would regard the statement as a threat of violence. But it wasn’t entirely clear what test the justices might adopt in its place. SCOTUSblog: Is it unconstitutional for an elected official to block critics on social media? By John Elwood .....The justices will be considering 123 petitions and applications at this Friday’s conference. They’ll be discussing four cert petitions for the second time. Two of the relisted cases involve an issue sufficiently important that the court already came close to granting it in Trump v. Knight First Amendment Institute (until the issue in that case became moot when President Trump was voted out of office): whether it violates the First Amendment for a government official to block people on a personal social media account that they use to communicate with the public about their official duties. O’Connor-Ratcliff v. Garnier involves a suit against two members of a Southern California school board, Michelle O’Connor-Ratcliff and T.J. Zane. The U.S. Court of Appeals for the 9th Circuit held that the board members blocking constituents on Facebook and Twitter constituted state action. O’Connor-Ratcliff and Zane seek review. Lindke v. Freed is a similar case involving the city manager of Port Huron, Michigan. The U.S. Court of Appeals for the 6th Circuit held that he did not violate a city resident’s rights when he blocked access to his Facebook page, and the resident, Kevin Lindke, seeks review. There is undoubtedly a split and the issue unquestionably recurs frequently. I rate this a likely grant, and the odds are good the court is simply taking the extra week to check for vehicle problems and deciding which of the two to take (although it could take both and consolidate). The Courts Alliance Defending Freedom: Moms for Liberty–Brevard County v. Brevard Public Schools .....On behalf of Young America’s Foundation, Alliance Defending Freedom attorneys filed a proposed friend-of-the-court brief Monday with the U.S. Court of Appeals for the 11th Circuit, urging it to reject government interference in public debate when public school officials pick and choose which views to allow. In the case, Moms for Liberty–Brevard County v. Brevard Public Schools, Brevard Public Schools maintains an overly broad policy that bans any “statement” that board members subjectively deem “abusive” at board of education meetings. Congress Fox News: Biden campaign, Blinken orchestrated intel letter to discredit Hunter Biden laptop story, ex-CIA official says By Brooke Singman .....A former CIA official testified that then-Biden campaign senior adviser, now-Secretary of State Antony Blinken "played a role in the inception" of the public statement signed by current and past intelligence officials that claimed the Hunter Biden laptop was part of a Russian disinformation campaign. Former CIA Deputy Director Michael Morrell testified before the House Judiciary and Intelligence Committees, and revealed that Blinken was "the impetus" of the public statement signed in October 2020 that implied the laptop belonging to Hunter Biden was disinformation. House Judiciary Committee Chairman Jim Jordan, R-Ohio, and House Intelligence Committee Chairman Mike Turner, R-Ohio, sent a letter to Blinken Thursday, notifying him that the panels are "conducting oversight of federal law-enforcement and intelligence matters within our respective jurisdictions." Reason: Democrats Threaten Matt Taibbi With Jail Time Over Twitter Files Testimony By Robby Soave .....Stacey Plaskett, a Democrat, is the delegate from the Virgin Islands to the U.S. Congress. Last month, when independent writers Matt Taibbi and Michael Shellenberger testified before the House Judiciary Select Subcommittee on the Weaponization of the Federal Government, she described them as "so-called journalists" and sought to undermine their testimony about government pressure to restrict speech on Twitter. She has now gone much further. Plaskett recently sent a letter to Taibbi accusing him of perjury and suggesting that he could face up to five years in jail. The letter was obtained by Lee Fang, a writer who works with Taibbi and publishes on Substack. In it, Plaskett notes that providing false testimony to Congress "is punishable by up to five years imprisonment." Political Parties Wall Street Journal: For Saner Politics, Try Stronger Parties By Gerald F. Seib .....Today, the movement to weaken the national party structures that began in 1968 has reached its logical result: The power of the two national party organizations has declined so dramatically that they sometimes appear to be bystanders to a political system in which they were once central actors. This trend, some in both parties believe, is too much of what once seemed a good thing and is now contributing to the polarization and dysfunction of America’s political system. The decline of party organizations has opened the way for the rise of more extreme voices and, crucially, turned much of the financing of campaigns over to less-accountable players. The extremes of left and right have been strengthened in the process, and the center hollowed out. Paradoxical as it may sound, the decline of the parties has led to more ferocious partisanship. “The party organizations are so damn weak,” laments Frank Fahrenkopf, former chairman of the Republican National Committee. Donna Brazile, a former Democratic national chairwoman, says that “over the years, the parties have been weakened by the new landscape where super PACs and other dark money forces have a stranglehold.” Independent Groups Washington Post: DeSantis group plans field program, showing the expanding role of super PACs By Michael Scherer, Isaac Stanley-Becker and Ashley Parker .....The arrangement marks a new frontier in the rapidly shifting campaign finance landscape that governs presidential efforts, as outside groups allied with candidates behave more and more like traditional campaigns. Made possible by a pair of court decisions in 2010, super PACs have steadily evolved since, from deep-pocketed attack ad operations to sprawling organizations that undertake much of the work of a campaign, including candidate fundraising, strategic operations, polling, opposition research and communications. Though super PACs are technically barred from coordinating major spending to influence an election with the candidates they support, the walls of demarcation mean less in practice. Little has stopped prospective candidates from working with their super PACs before announcing their campaigns. PAC staff can rotate over to the campaign after the candidate’s formal operation is announced. And detailed strategy ideas and planning can be shared between the two entities through publicly accessible websites. Officials at Never Back Down — which is led in part by Phil Cox, one of the governor’s top political advisers — has been telling donors they intend to push the bounds of what an independent effort can do in presidential years. That includes a major push into the sort of organizing in early states that has historically been undertaken by candidates themselves. Events The Jefferson Council for the University of Virginia: The Bad Ideas Fueling Today’s Attack on The Best Idea -- Free Speech Tuesday, April 25, 7pm EDT .....The Jefferson Council invites you to hear George Will on April 25th at the University of Virginia. The topic of his address could not be more timely: “The Bad Ideas Fueling Today’s Attack on The Best Idea — Free Speech.” The States NorthJersey.com: Head of NJ ELEC sues Murphy, says new campaign finance law overhaul is unconstitutional By Ashley Balcerzak .....The head of New Jersey's campaign finance watchdog sued Gov. Phil Murphy on Thursday — the second lawsuit he has filed against the governor this year — challenging the constitutionality of the controversial and recently signed Elections Transparency Act, which overhauled the elections agency and campaign finance rules in the state. Spectrum News: Lawmakers hear first committee hearing testimony on Ohio Anti-Corruption Act By Samana Sheikh .....The [Ohio Anti-Corruption Act] aims to close "dark money" loopholes by requiring nonprofits to publicize contributions made to influence elections and preventing U.S. companies with foreign decision-makers from contributing funds to campaigns... Despite the bill's intentions, some lawmakers argue it could inadvertently limit groups that don't use corrupt money but are labeled as dark money providers. "Your bill does a lot more than what you say because it applies both to issue campaigns and candidate campaigns. The difference between what you're talking about, where grandma gives you $100 and she's giving that to your campaign. This so-called secret dark money is mostly spent on issues. So you are extending a principle applicable to campaign finance for individual candidates running for office. You're applying that standard to something totally different," State Rep. Bill Seitz, R-Cincinnati, said. Read an article you think we would be interested in? Send it to Tiffany Donnelly at [email protected]. For email filters, the subject of this email will always begin with "Institute for Free Speech Media Update." The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Please support the Institute's mission by clicking here. For further information, visit www.ifs.org. 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