This is the Daily Media Update published by the Institute for Free Speech. For press inquiries, please contact [email protected].
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Supreme Court
By Kalvis Golde
.....Four years ago, the Supreme Court ruled in Nieves v. Bartlett that a plaintiff who alleges he was arrested in retaliation for speech protected by the First Amendment must show that police lacked probable cause to arrest him. However, the decision carved out an exception to deal with situations in which police may have probable cause to make an arrest but normally opt not to do so. In his opinion for the majority, Chief Justice John Roberts cited as an example of such an exception a vocal critic of police conduct who is arrested for jaywalking at an intersection where jaywalking is common. The “no probable cause” requirement would not apply, Roberts explained, if the critic could provide “objective evidence” that officers did not arrest similarly situated jaywalkers who kept their mouths shut. This week, we highlight cert petitions that ask the court to consider, among other things, how closely aligned evidence must be to satisfy that exception.
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The Courts
By Seanna Adcox
.....A federal court win by hardline conservatives in the South Carolina House allows them to raise money and campaign against their Republican colleagues, likely raising GOP infighting in the Statehouse to unseen levels.
The June 13 ruling by U.S. District Judge Cameron Currie puts the Freedom Caucus on par with major-party caucuses in its ability to raise and spend money, potentially resulting in more well-funded challengers to House GOP incumbents they perceive as not faithful enough.
“This was an across-the-board win for us,” said Rep. R.J. May, a founder of the group that formed last year as a faction of the House Republican Caucus.
The ruling “was very forceful against the use of government to silence political opposition,” he said. “Now with that ruling in hand, we are able to fight back.”
May, who runs campaigns for a living, said the group will get to work setting up bank accounts and raising money “as soon as possible.”
The ruling means he no longer needs to turn away potential candidates wanting to run under the Freedom Caucus banner, he said...
The lawsuit was filed against the 10-member Ethics Committee that’s evenly divided among Republicans and Democrats. But it was aimed squarely at members of the Caucus’ own party.
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By John Hult
.....A Virginia anti-abortion group wants a federal judge to strike down a South Dakota law that requires nonprofit organizations to list their top five donors on political messaging.
Students for Life of America is a nonprofit advocacy group launched in 2006, with an aim to educate and connect anti-abortion students with messaging tools and one another. Students for Life Action is an associated group, but is a different type of nonprofit allowed to engage in political activities.
On Monday, Students for Life Action filed a lawsuit in the U.S. District Court in South Dakota alleging that the state’s donor disclosure requirements violate the First Amendment of the U.S. Constitution. The litigation names Attorney General Marty Jackley and Secretary of State Monae Johnson as defendants.
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By Elizabeth Nolan Brown
.....The founders and several former executives of Backpage are set to stand trial this August, more than five years after being arrested for allegedly facilitating prostitution and nearly two years since a judge declared a mistrial over biased testimony and prosecutorial overreach...
In a series of motions filed yesterday, the government seeks to prevent the Backpage defendants' legal team from making basically any reasonable attempt to defend against the charges against them.
Most egregiously, prosecutors want to bar them from mentioning the First Amendment. But the First Amendment is at the center of this case, which revolves around user-generated ads posted to a digital classified-advertising platform. The very crux of the matter is online content and speech.
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Congress
Subcommittee Hearing
Date: Wednesday, June 14th, 2023
Time: 02:00pm
Location: Dirksen Senate Office Building Room 226
Presiding: Chair Whitehouse
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By Luke Wachob
.....Lady Justice may be blind, but before you speak to her, Rhode Island Senator Sheldon Whitehouse wants to see your donor list.
On June 14 at 2 PM ET, a U.S. Senate Judiciary Subcommittee will hold a hearing on Senator Whitehouse’s “Supreme Court Ethics, Recusal, and Transparency Act of 2023” (S. 359). Tucked into the legislation is a provision from the AMICUS Act, a dangerous proposal that would force any nonprofit that files just one amicus brief in federal court per year to publicly expose the identity of its significant donors in the text of the brief. S. 359 also has a House companion bill, H.R. 926.
While the AMICUS Act’s disclosure requirements are limited to donors giving over $100,000 or 3% or more of a nonprofit’s gross annual revenue in the prior calendar year, this demand is nevertheless unprecedented and would impact causes of all stripes – and their supporters – indiscriminately and with likely devastating results. Donors may become less willing to fund worthy causes, nonprofits may choose not to share their expertise with the courts, judicial deliberations may suffer from a dearth of perspectives, and Americans may suffer harassment or other acts of retaliation for their giving.
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.....Today, TechFreedom was joined by seventeen leading Competition and Internet law scholars in a letter to the Senate Judiciary Committee renewing our concerns over the ill-named Journalism Competition and Preservation Act of 2023. Unfortunately, despite positive amendments last year, the bill remains a serious threat to First Amendment rights and content moderation.
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Free Expression
By Amanda Holpuch
.....Anna Tuchman, associate professor of marketing at the Kellogg School of Management at Northwestern University, has researched boycotts, including the calls for people to stop buying Goya Foods products in 2020 after the company’s president praised President Donald J. Trump. Her research and other similar studies have found that such efforts tend to be short-lived and don’t have a long-term effect.
Professor Tuchman said that, while people may be willing to change their behavior for a few weeks, it is much harder to convince people to change their long-term behavior.
Another obstacle in boycotts is finding replacement products.
Anheuser-Busch sells more than 100 brands of beer in the United States and is the largest beer brewer in the world.
One supporter of the boycott, Representative Dan Crenshaw, Republican of Texas, posted a video online to show that his fridge did not have Bud Light, but it did have beer from Karbach Brewing Company, which is also owned by Anheuser-Busch…
Professor Tuchman found that during the Goya boycott the company’s sales rose by 22 percent over two weeks before falling back to the baseline.
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Candidates and Campaigns
By Ned Foley
.....Brennan Center analysis. I share the concern about disinformation, including the capacity for AI to produce more effective deceptions. But I also continue to believe, as I wrote in 2020, that it is essential to maintain a clear distinction between (1) activity that affects voter choice and (2) activity that prevents voter choice. We should do what we can (consistent with the First Amendment) to protect public discourse from deliberate falsity, including counterfeit content produced by AI, but ultimately in a free and self-governing society we must trust voters to make up their own minds about which candidates to support. Voters can be swayed by an old-technology Swift Boat campaign (for those who remember the 2004 election), or by an AI-generated deepfake. But whatever motivates their vote, the result is a valid election as long as their votes were cast and counted as they intended.
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Online Speech Platforms
By Jonathan Vanian
.....In her first tweet thread since becoming CEO of Twitter last week, Linda Yaccarino on Monday emphasized the company’s focus on free speech, a topic favored by owner Elon Musk.
“Twitter is on a mission to become the world’s most accurate real-time information source and a global town square for communication,” Yaccarino wrote on Twitter and in a memo to employees. “That’s not an empty promise.”
To “drive civilization forward,” Yaccarino wrote, people need access to an “unfiltered exchange of information and open dialogue about the things that matter most to us.” Prior to Twitter, Yaccarino was global advertising chief at NBCUniversal, CNBC’s parent company.
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The States
By Eugene Volokh
.....From Pinnacle Bancorp, Inc. v. Moritz, decided Mar. 31 by the Nebraska Supreme Court (in an opinion by Justice John Freudenberg, joined by Chief Justice Michael Heavican and Justices Stephanie Stacy and Jonathan Papik):
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