The Latest News from the Institute for Free Speech May 22, 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 OCPA: Oklahoma bill pending at Governor Stitt's desk could reduce transparency, fuel harassment lawsuits By Ray Carter .....Harassment lawsuits that target the free-speech activities of Oklahomans could become more common under a bill sent to the governor... House Bill 1236 removes the requirement for courts to impose...penalties on individuals filing frivolous lawsuits based on an opponent’s free-speech activities. That would represent a significant step backward, based on one national ranking. The Institute for Free Speech ranks Oklahoma’s current anti-SLAPP law among the best in the nation, noting the law “protects the exercise of the right of free speech, right to petition, and right to association.” “Anti-SLAPP statutes are designed to address a structural problem within American law: namely, an unscrupulous litigant can use litigation strategically to suppress or punish speech he or she dislikes,” the Institute for Free Speech notes. “Such a litigant would typically claim that the speech constituted defamation and then sue others to harass them, silence them, or force them to bear significant litigation costs. Those who are faced with such a lawsuit … are often presented with a harsh choice – accede to the litigant’s demand for settlement (which may include paying compensation, ceasing criticism, and apologizing) or continue to bear heavy legal fees as the suit progresses. Either choice may entail substantial losses of speech, reputation, time, and money. These are costs defendants must bear even when faced with lawsuits that plaintiffs have a minimal chance of winning.” Supreme Court SCOTUSblog: Petitions of the week: Former candidates say New Jersey’s “slogan statutes” violate the First Amendment By Kalvis Golde .....Laws governing elections and the right to participate in the political process receive varying degrees of scrutiny when challenged in court. The Supreme Court has held that election laws restricting “core political speech” trigger a high degree of suspicion under the First Amendment. By comparison, laws that simply regulate the “machinery” of elections are subjected to a more flexible balancing test. This week, we highlight cert petitions that ask the court to consider, among other things, what level of First Amendment scrutiny applies to a state law governing slogans that appear alongside candidates’ names on the ballot. New Jersey’s so-called “slogan statutes” permit candidates in primary elections to have a short phrase – containing no more than six words – listed next to their names on the ballot. These slogans allow candidates to affirm their commitment to a platform goal or align themselves with a faction of their political party. The slogans cannot include the name of any person or a corporation located in New Jersey without their written consent. The Courts Washington Post: FBI misused surveillance tool on Jan. 6 suspects, BLM arrestees and others By Devlin Barrett .....The FBI has misused a powerful digital surveillance tool more than 278,000 times, including against crime victims, Jan. 6 riot suspects, people arrested at protests after the police killing of George Floyd in 2020 and — in one case — 19,000 donors to a congressional candidate, according to a newly unsealed court document… [A]n FBI analyst “conducted a batch query for over 19,000 donors to a congressional campaign” because the analyst said the campaign was “a target of foreign influence,” the opinion said. But Justice Department officials found in an audit that “only eight identifiers used in the query” — often a name, phone number or an email address — “had sufficient ties to foreign influence activities” to comply with FISA standards. Election Law Blog: DC Circuit rejects Heritage Action’s effort to intervene in Campaign Legal Center suit against FEC By Derek Muller .....You can see the DC Circuit’s unanimous opinion in Campaign Legal Center v. Federal Election Commission, here. The introduction of the opinion: Chronicle of Higher Education: Diversity Statements Violate First Amendment, Professor Says in Suing U. of California By Adrienne Lu .....A former psychology professor this week sued the University of California system, claiming that its use of diversity statements in hiring represents “a thinly veiled attempt to ensure dogmatic conformity throughout the university system.” John D. Haltigan, a former assistant professor in the department of psychiatry at the University of Toronto, sought to apply for a tenure-track position at the University of California at Santa Cruz that was posted last July and remains open. He left his post at Toronto because it was funded by a grant that ran out, according to his lawyer. Congress U.S. Senator Marco Rubio: Rubio, Warner Reintroduce Bill to Curb Foreign Influence in Elections .....Additional safeguards for state and local elections from foreign interference are needed, and making it illegal for foreign donors to contribute to any ballot initiative or referendum provides a bipartisan solution. U.S. Senators Marco Rubio (R-FL) and Mark Warner (D-VA) reintroduced the Protecting Ballot Measures from Foreign Influence Act, which would make it unlawful for a foreign national to contribute money, either directly or indirectly, to a State or local ballot initiative or ballot referendum. Notably, the bill ensures that the Federal Election Commission (FEC) cannot assert authority over those State or local ballot initiatives or referendums. U.S. Senator Michael Bennet: Bennet, Welch Reintroduce Landmark Legislation to Establish Federal Commission to Oversee Digital Platforms .....Today, Colorado U.S. Senator Michael Bennet and U.S. Senator Peter Welch (D-Vt.) introduced the Digital Platform Commission Act, the first-ever legislation in Congress to create an expert federal agency to provide comprehensive regulation of digital platforms to protect consumers, promote competition, and defend the public interest. Amid calls for regulation of artificial intelligence (AI) and social media, the senators propose a new Federal Digital Platform Commission with the mandate, jurisdiction, and tools to develop and enforce rules for a sector that has gone virtually unregulated. Free Expression The Atlantic: How the Right and the Left Switched Sides on Big Business By Conor Friedersdorf .....In a bygone era, Americans could be confident that conservatives, like the former General Electric pitchman Ronald Reagan, were friendlier to corporations than their ideological opponents, and that the most aggressive efforts to rein in corporate power were coming from the left. Today, the relationship that the American left and right each have with Big Business is different. When corporations advance voting rights or acceptance of gays and lesbians, or oppose racism or laws that restrict the ability of trans people to use the bathroom where they feel most comfortable, many progressives are happy to see corporate power exerted as a counter to majorities in state legislatures or even views held by a majority of voters in red states. And some Republicans who pass socially conservative measures into law, like Governor Ron DeSantis of Florida, have responded to corporate opposition with retaliatory rhetoric and actions that cast dissenting corporate speech as illegitimate and antidemocratic. Candidates and Campaigns New York Times: Air DeSantis: The Private Jets and Secret Donors Flying Him Around By Alexandra Berzon and Rebecca Davis O’Brien .....Ahead of an expected White House bid, Mr. DeSantis has relied heavily on his rich allies to ferry him around the country to test his message and raise his profile. Many of these donors are familiar boosters from Florida, some with business interests before the state, according to a New York Times review of Mr. DeSantis’s travel. Others have been shielded from the public by a new nonprofit, The Times found, in an arrangement that drew criticism from ethics experts. Mr. DeSantis, who is expected to formally announce his candidacy next week, is hardly the first politician to take advantage of the speed and comfort of a Gulfstream jet. Candidates and officeholders in both parties have long accepted the benefits of a donor’s plane as worth the political risk of appearing indebted to special interests or out of touch with voters. But ethics experts said the travel — and specifically the role of the nonprofit — shows how Mr. DeSantis’s prolonged candidate-in-limbo status has allowed him to work around rules intended to keep donors from wielding secret influence. As a declared federal candidate, he would face far stricter requirements for accepting and reporting such donations. The States Reason (Volokh Conspiracy): Montana Town Forbids All Protests (Except at City Hall), Because of Planned Protests of "Drag Story Hour" By Eugene Volokh .....From a Livingston (Montana) Police Department order, posted by the Livingston Enterprise (Sean Batura): CommonWealth: Why stopping the super PAC ballot question is important By Paul D. Craney .....Last September, the Fiscal Alliance Foundation offered testimony to then Attorney General Maura Healey’s office to disqualify a potential 2024 ballot question proposed by Harvard Law Professor Larry Lessig. Lessig’s ballot question is called “Initiative Petition for a Law Relative to Limiting Political Contributions to Independent Expenditure PACs,” and would place a limit of $5,000 on contributions that super PACs could accept. The attorney general agreed with the Fiscal Alliance Foundation’s arguments and the ballot question was rejected. Our testimony was used in the reasoning for why the proposed ballot question was unconstitutional. Lessig appealed the attorney general’s ruling to the state’s highest court, the Massachusetts Supreme Judicial Court, and earlier this week the court declared the issue moot and declined to render a decision. The Fiscal Alliance Foundation offered an amicus brief for why the constitutional right of free speech and association would be limited under Lessig’s ballot question. Center Square: Group proposes fixing South Carolina’s 'inadequate' campaign finance laws By T.A. DeFeo .....From giving the South Carolina State Ethics Commission "real" enforcement authority to clearly defining political committees, one organization says election law changes will increase transparency in the Palmetto state. The South Carolina Policy Council made the recommendations as part of a report with ideas on how the state should overhaul its campaign finance and ethics laws, which the group says are "grossly inadequate." The group says disclosure is vital for transparency and accountability and says rules should be "clear, concise, and unambiguous." It also suggested ending legislative self-policing on campaign finance, prohibiting direct corporate contributions to candidates and political parties and mandating additional disclosures for contributions and expenses. 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. 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