The Latest News from the Institute for Free Speech April 28, 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]. Supreme Court The Atlantic: The Supreme Court Seems Poised to Decide an Imaginary Case By Evelyn Douek and Genevieve Lakier .....A few years ago, Billy Raymond Counterman was convicted of stalking. Now his case is before the Supreme Court—where, bafflingly, the justices spent oral arguments last week exploring how to define a “true threat,” something Counterman was never convicted of making. Threats and stalking are entirely different crimes, with entirely different elements and constitutional implications. If the Court goes ahead and issues a ruling about threats, as it seems poised to do, it could inadvertently weaken stalking laws around the country. A set of imaginary facts could lead to serious real-world harm. The Courts Indiana Lawyer: 7th Circuit asks IN Supreme Court to consider dispute about corporate contributions to PACs By Tyler Fenwick .....The 7th Circuit Court of Appeals is asking the Indiana Supreme Court to consider whether state law prohibits or otherwise limits corporate contributions to political action committees or other entities that engage in independent campaign-related expenditures. The certification of a question to the state’s high court comes in a case involving Indiana Right to Life Victory Fund, which wants to operate as an independent-expenditure PAC — commonly called a super PAC — in Indiana but fears the state’s election laws won’t allow it to accept donations from corporations, or that there would be a cap on how much those corporations could donate. The group believes that would be a violation of its First Amendment rights, so it and a private company — Sarkes Tarzian Inc. — went to federal court seeking to prevent Indiana from enforcing its campaign-finance laws to limit or ban corporate contributions to super PACs... The case is Indiana Right to Life Victory Fund and Sarkes Tarzian, Inc. v. Diego Morales, et al., 22-1562. Reason (Volokh Conspiracy): Ryan Lizza Prevails in District Court Against Devin Nunes (and Nunes' Family Members) in Nunes v. Lizza By Eugene Volokh .....The 101-page decision is at Nunes v. Lizza. The bottom line: [D]efendants' motion for summary judgment … is granted as to NuStar plaintiffs' claim of defamation (Count I), granted as to NuStar plaintiffs' claim of defamation by implication (Count II), and granted as to Nunes' claim of defamation by implication (Count I). FEC Government Executive: The Campaign Finance Agency’s Press Shop Can’t Confirm or Deny the Existence of Complaints Anymore By Courtney Bublé .....The press shop for the nation’s campaign finance agency can no longer confirm or deny the existence of complaints of alleged violations it has received, departing from years of practice and raising concerns about transparency. The Federal Election Commission–an independent regulatory agency that administers and enforces federal campaign finance law–voted 4-2 on April 19 to enact this change. The vote was requested by FEC Commissioner Allen Dickerson, a Republican, citing legal advice from the agency’s Office of General Counsel in 2006 that was never followed, and was not completely along party lines. The two commissioners who voted against the change as well as several advocacy groups lambasted the decision, saying it hinders the agency’s ability to be transparent. FEC Chair Dara Lindenbaum, a Democrat, said in a statement on Tuesday explaining her vote for the measure that she appreciates the role the press plays as well as takes seriously her role in following the 1971 Federal Election Campaign Act and its implementing regulations. “Upon learning that the commission’s press office was disclosing the existence of complaints in response to inquiries and that this practice was contrary to commission regulations and the commission’s office of general counsel's most recent assessment, I agreed with my fellow commissioners to take action to align FEC practices with its legal authority,” she wrote. However, Lindenbaum said that complainants may choose to share their concerns publicly and she welcomes “fresh petitions for rulemaking on this issue with ideas for how the commission can amend its regulations to allow for greater transparency and accountability.” The Media Washington Post: Inside a private portal from GOP campaigns to local news sites By Isaac Stanley-Becker and Josh Dawsey .....The top Republican campaigns in Illinois used a private online portal last year to request stories and shape coverage in a network of media outlets that present themselves as local newspapers, according to documents and people familiar with the setup. Screenshots show that the password-protected portal, called Lumen, allowed users to pitch stories; provide interview subjects as well as questions; place announcements and submit op-eds to be “published verbatim” in any of about 30 sites that form part of the Illinois-focused media network, called Local Government Information Services. Free Expression Popehat Report: True Threats And American Cultural Gulfs By Ken White .....These socioeconomic, ethnic, gender, and cultural gulfs show up in First Amendment law. Take the “true threats” doctrine. That’s the doctrine that a threat is only outside the protection of the First Amendment if it is “true” — that is, if a reasonable person would take it as a sincere expression of intent to do harm to someone. In an atomized society, what the hell does that mean? Is the standard some hypothetical generic middle-American? Is it a reasonable person from the subculture of the speaker, or the hearer, or both? This is not an idle question. Different communities can have radically different understandings of whether words are threatening… One way you might be able to bridge this gulf is by adding a subjective component to the true threats test. That is, you could require that to be a true threat, a statement must not be just objectively threatening to a reasonable person, but also require that the speaker had some sort of wrongful subjective intent — an intent that it be taken as a threat, recklessness or indifference to how it would be taken, or so forth. Different jurisdictions apply different rules for the subjective component of the true threats test. In 2015, the United States Supreme Court declined to decide that question. Nonprofits NPR: No Labels is getting on state ballots, drawing a lawsuit and concerns about a spoiler By Ben Giles .....The centrist political group No Labels is getting on the ballot in individual states, causing consternation among members of the major political parties about the organization's endgame. The group says it's not interested in running a presidential campaign. Nonetheless, the Washington, D.C.-based nonprofit is committed to raising roughly $70 million to gather signatures and qualify for the ballot in 2024… "We have an organization that wants to be recognized as a political party, but it's simply not disclosing who their donors are," said attorney Roy Herrera, who's suing No Labels on behalf of the Arizona Democratic Party, which wants to bar the organization from the ballot... Federally, No Labels exists in something of a gray area. To the Federal Election Commission, No Labels doesn't yet have to register as a political party thanks to a 15-year-old court case dealing with a previous third-party contender. Adav Noti argued the losing end of the case for the FEC. Now he's senior vice president and legal director at the nonpartisan Campaign Legal Center. Podcasts Early Returns - Law and Politics with Jan Baran: The Honorable Thomas Griffith – Judiciously Ruling in the Face of Politics .....In this episode, Jan speaks with the Honorable Thomas Griffith, former judge for the U.S. Court of the Appeals for the D.C. Circuit. They discuss when law becomes political and when politics becomes legal. They examine how politics affects the legal process and how the legal system tries to rule honorably in the face of politics and political issues. The States New York Times: A Fake Craigslist Ad Costs a New Hampshire Man His Right to Vote By Lauren McCarthy .....On the day of a special election in New Hampshire in April 2021, Michael Drouin posted a fake advertisement on Craigslist offering a free trailer and listed the phone number of Bill Boyd, a candidate for a state House seat. Mr. Drouin thought he was playing a harmless practical joke, but it was no laughing matter to Mr. Boyd, a Republican, who told the police that he received dozens of texts and phone calls in under an hour on the morning of April 13, 2021, before he shut off his phone. Mr. Drouin was indicted in November 2022 on a felony charge of interference with election communications. On Monday, Mr. Drouin, 30, of Merrimack, N.H., pleaded guilty to the reduced charge of creating a false document, an election law offense, admitting that he knowingly interfered with Mr. Boyd’s ability to use his cellphone on Election Day. The charge is a misdemeanor, not a felony, but it still cost him his right to vote in the state. AP News: School superintendent who criticized DeSantis could lose job By Terry Spencer .....Florida officials are threatening to revoke the teaching license of a school superintendent who criticized Gov. Ron DeSantis, accusing the educator of violating several statutes and DeSantis directives and allowing his “personal political views” to guide his leadership. Such a revocation by the state Department of Education could allow DeSantis to remove Leon County Superintendent Rocky Hanna from his elected office... “It’s a sad day for democracy in Florida, and the First Amendment right to freedom of speech, when a state agency with unlimited power and resources, can target a local elected official in such a biased fashion,” Hanna said in a statement sent to The Associated Press and other media Thursday. A Democrat then running as an independent, Hanna was elected to a second four-year term in 2020 with 60% of the vote. He plans to run for reelection next year and does not need a teacher’s license to hold the job. “This investigation has nothing to do with these spurious allegations, but rather everything to do with attempting to silence myself and anyone else who speaks up for teachers and our public schools in a way that does not fit the political narrative of those in power,” Hanna said. Dallas Morning News: Free speech protections are under threat in Texas Legislature By Editorial Board .....In 2011, Texas passed a robust law known as the Texas Citizens Participation Act that provided protections against what are known as SLAPP suits — strategic lawsuits against public participation. Such lawsuits quash speech by making it too risky to speak up for fear of being sued. The TCPA gives parties in lawsuits the opportunity to get an automatic stay of costly discovery and other legal proceedings while an appellate court reviews the matter. Unfortunately, the state Senate has embraced an overreaching bill that is supposedly aimed at curing abuses to the TCPA. OPB: Campaign finance limits could come up short in Oregon Legislature — again By Dirk VanderHart .....With two months left in the 2023 session, the notion of curbing massive donations to political campaigns – always on the list of possible subjects majority Democrats plan to take up – is once again in danger of falling by the wayside. The issue has yet to receive a hearing in either chamber, despite a variety of bills that would create new regulations… The governor campaigned last year on a promise to press for contribution limits, in an election where she spent roughly $30 million to win a three-way race that became the state’s most expensive political contest ever. That race featured eye-popping contributions from billionaire Nike co-founder Phil Knight along with record support from unions and interest groups rushing to fund their candidate of choice. If lawmakers fail to pass a bill this session – and many lobbyists working on the issue seem to expect they will – Oregon voters are increasingly likely to be treated to a confusing slate of choices in 2024. A coalition of good governance groups have already filed three separate ballot measure proposals that would, among other things, create contribution limits, require increased transparency around donations, and institute optional public funding for campaigns. The groups – including Honest Elections Oregon, Common Cause Oregon and the League of Women Voters of Oregon – hope to begin collecting signatures on their chief proposal, Initiative Petition 9, in coming days. 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." 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