This is the Daily Media Update published by the Institute for Free Speech. For press inquiries, please contact [email protected].
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In the News
By The Editorial Board
.....A legal complaint filed this month by a history professor in Bakersfield says that his community college’s performance and tenure reviews are being used to force faculty to adopt woke progressive values in their classrooms.
Daymon Johnson has been at Bakersfield College since 1993. As he tells it, three months ago California Community Colleges, which serves 1.8 million students at 116 campuses, amended its regulations so employees must espouse its tenets of diversity, equity, inclusion and accessibility (DEIA). “Faculty members shall employ teaching, learning, and professional practices that reflect DEIA and anti-racist principles,” the regulations say. Schools must “place significant emphasis on DEIA competencies in employee evaluation and tenure review.”
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New from the Institute for Free Speech
.....The California Community Colleges Board of Governors recently issued a pervasive set of guidelines that force faculty to embrace an “anti-racist” ideology, in clear violation of fundamental First Amendment rights.
Participation in the state’s all-encompassing political program is now required “to teach, work, or lead within California’s community colleges.” The state explicitly demands that “faculty members shall employ teaching, learning, and professional practices that reflect DEIA [diversity, equity, inclusion, accessibility] and anti-racist principles.” And so-called “equity-centered practices” must be incorporated “into teaching and learning, grading, annual evaluations, and faculty review/tenure processes.”
A newly amended lawsuit filed by the Institute for Free Speech on behalf of Bakersfield College history professor Daymon Johnson asks a federal court to declare the rules unconstitutional.
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Congress
By The Editorial Board
.....At the Judiciary Committee on Thursday, Mr. Whitehouse brought up “freebie vacations,” as expected. But he also criticized the Justices for receiving friend-of-the-court briefs from what he called “flotillas of coordinated front group amici”—meaning think tanks and other groups that have the nerve to speak their minds on pending cases. “Some amici have been paid by parties,” Mr. Whitehouse said. “Others have masked special interests out to influence the law.”
Ahem, influencing the law is what all amicus briefs try to do. They come from all sides of a given issue. One way to view this is as a vigorous debate in a healthy civil society. Mr. Whitehouse prefers to see a conspiracy. “These right-wing front groups have a statistically staggering record of certain Justices ruling their way,” he said. Is it really such a surprise that conservative think tanks make the kinds of arguments that conservative jurists ultimately adopt?
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By Sheryl Gay Stolberg
.....Despite the theater, the hearing raised thorny questions about free speech in a democratic society: Is misinformation protected by the First Amendment? When is it appropriate for the federal government to seek to tamp down the spread of falsehoods?
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FBI
By Jordain Carney
.....According to the newly declassified court document, in June 2022, an FBI analyst conducted four searches of information collected under the warrantless surveillance program “using the last names of a U.S. Senator and a state senator.” In both cases, the analyst had information showing that the two lawmakers were being targeted by a foreign intelligence service.
A senior FBI official stressed that “none of these individuals were surveilled” and the FBI “did not collect any information on them” in response to the search. The analyst ran an unapproved search “against our databases to retrieve any information that was already lawfully collected,” the official added.
But the database searches nonetheless violated the FBI’s policy on multiple fronts, according to the court document.
The analyst in question, whom the court did not name, failed to get pre-approval from the deputy director that is required for searches that use “sensitive query terms,” such as the names of public officials or candidates. More broadly, the analyst’s searches did not fully meet the FBI’s search standards that it considers when determining if a search is “likely to retrieve foreign intelligence information or evidence of a crime,” the court found.
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Free Expression
By Bryce Covert
.....Anti-SLAPP laws have been proliferating across the country, in part spurred by the experience of sexual harassment victims. “That’s something that really came out of the #MeToo movement,” [Jennifer Mondino, director of the TIME’S UP Legal Defense Fund,] said. Twelve states have either passed new laws or strengthened their existing ones since 2017.
California, which already has a strong anti-SLAPP law, also has a pending bill that would clarify that a complaint of sexual assault, harassment, or discrimination is protected from claims of libel or defamation…
But 18 states still don’t have anti-SLAPP on the books at all. A strong federal law would extend these protections to everyone. Last year Rep. Jamie Raskin, D-Md., introduced a bill that would create just such a law.
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By Dan Tokaji
.....Here’s the abstract of the paper available on SSRN: “This review essay draws on recent books by Richard L. Hasen and Jacob Mchangama to reflect on the difficult tradeoffs faced by civil liberties advocates in the context of democratic backsliding.” Keck concludes:
[C]ontemporary liberal democracies face a difficult choice. They can extend full freedom of expression to deliberately false speech that undermines free and fair elections, on the theory that doing so will make it easier to maintain full freedom of expression for legitimate political opposition and dissent. If they make this choice, they should do so knowing that no one has yet demonstrated this causal connection. Alternatively, they can declare a red line marking speech deliberately undermining free and fair elections as out of bounds. If they make this choice, they should do so knowing that speech restrictions have a tendency to metastasize.
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Candidates and Campaigns
By Eric Boehm
.....Indeed, the weaponization of the state against those on the political left is the central theme of DeSantis' entire campaign. He proudly boasts that Florida is "where woke goes to die," and has banned schools in Florida from teaching anything that state education bureaucrats might deem to be "critical race theory." Regardless of how he might define the terms "woke" and "critical race theory," there's no denying that his objections to them are purely political.
You could say the same thing about DeSantis' decision during the pandemic to ban private businesses from requiring that workers and customers wear masks. And about his ongoing feud with The Walt Disney Company, Florida's largest employer, which has accused DeSantis of orchestrating an unconstitutional "targeted campaign of government retaliation" after Disney's then-CEO, Bob Chapek, spoke out against DeSantis' so-called "Don't Say Gay" law, which banned discussions of gender identity in public elementary school classrooms (the law was later broadened to include most classrooms up to grade 12).
That's a political disagreement about another political disagreement—and in both cases, DeSantis has aimed to limit the free speech rights of his opponents. While that may not quite rise to the level of "criminalizing political differences," which is what DeSantis accused the Justice Department of doing, DeSantis clearly has no qualms about exercising state power in political fights.
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By Jessica Piper and Brittany Gibson
.....Candidates for office were practically swimming in grassroots money over the last few cycles, as politics increasingly went online and the money followed.
This cycle, the well is drying up.
A POLITICO analysis of federal campaign finance data found a dramatic downturn in small-dollar donations across the board.
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The States
By Marco Poggio
.....Days after he questioned the absenteeism of the Police Department director during a City Council meeting, Charlie Kratovil, a seasoned local journalist and self-described advocate in New Brunswick, a city in central New Jersey, received a cease-and-desist letter.
In it, the police director threatened Kratovil with criminal prosecution and civil liability for sharing with City Council members the name of the street where the director lives — as it turned out, in a city more than two hours away from New Brunswick.
Kratovil obtained the director's residential address legally through an open records request, but that didn't stop the director, Anthony A. Caputo, from invoking a 2020 state law that made it a crime to disclose the addresses of judges, prosecutors and law enforcement officers to the public. In the letter, Caputo warned Kratovil of legal woes if he continued to share his residence information publicly...
Kratovil's case drew the attention of the American Civil Liberties Union of New Jersey, which last week filed a suit against Caputo and the City of New Brunswick arguing the statute, known informally as Daniel's Law in memory of Judge Salas' son, is an unreasonable violation of free speech as applied to Kratovil's work as a journalist.
"By threatening criminal and civil sanctions for reporting on truthful, legally obtained information, the city and its director of police unconstitutionally chill Mr. Kratovil's free speech and free press rights," Jeanne LoCicero, an attorney with the ACLU, said in a statement.
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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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The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the political rights to free speech, press, assembly, and petition guaranteed by the First Amendment. Please support the Institute's mission by clicking here. For further information, visit www.ifs.org.
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