September 21, 2023

In the News

Texas Tribune: The many times Ken Paxton refused to defend Texas agencies in court

By Jessica Priest and Vianna Davila

Requester: University of Texas at Austin

Request date: Feb. 13

Denial date: March 6. The attorney general’s office denied the request, stating in a letter that the request was “not appropriate for representation by our office.” It provided no further explanation in the letter.

Case: Lowery, the same UT professor who sued Texas A&M in 2022, sued three University of Texas at Austin officials on Feb. 8, 2023. In this lawsuit, Lowery claims university officials engaged in “a campaign to silence (him) by threatening his job, pay, institute affiliation, research opportunities, academic freedom, and labeling his behavior as inviting violence or lacking in civility.” He claims university officials did this after he publicly criticized them for using diversity, equity and inclusion requirements to filter out competent academics with a differing viewpoint.

What happened after the denial: The attorney general’s decision delayed the case, said Del Kolde, a senior attorney at the Institute for Free Speech who is representing Lowery. Kolde wanted to request a hearing as soon as possible to obtain a court order for UT not to retaliate against Lowery, but UT officials asked for patience as they waited to hear whether the attorney general’s office would represent them, Kolde told the news organizations.

The Courts

Courthouse News: Fourth Circuit ponders if Maryland tax on digital ads is a tax or a hammer

By Joe Dodson

.....The Fourth Circuit heard from tech associations Wednesday that argued Maryland is punishing digital advertisers for legal conduct.

The Chamber of Commerce of the United States and several membership-based tech trade associations initiated a lawsuit against Maryland's 2021 Digital Ad Tax Act, claiming the act retaliates against successful digital advertisers, like Meta or Google, for creating what the state says is a haven for dangerous misinformation and hate speech.

"Imposed essentially as a recurring fine for perceived misconduct, the act is punitive at every turn and functions nothing like a classic tax," the associations' brief states. "And it is illegal many times over." 

According to the state's brief, the act imposes a tax on a business's annual gross revenues from digital advertising services in Maryland if the company has at least $100 million in global gross yearly revenues for funds for Maryland public schools. The tax is tiered based on extraterritorial economic activity. 

An amendment to the act added a pass-through provision barring advertisers from passing on the tax cost to a customer who purchases the digital advertising services using a separate fee, surcharge or line item. 

The trade associations view this as a First Amendment violation because Maryland restricts protected speech. 

JDSupra: The D.C. Court of Appeals Invalidates Part of the Anti-Slapp Act

By David Reiser, Zuckerman Spaeder LLP

.....On September 7 the District of Columbia Court of Appeals reached an important issue about the D.C. Anti-SLAPP Act that it had reserved a few months earlier. In Banks v. Hoffman, the Court held “the discovery-limiting aspects of the D.C. Anti-SLAPP Act’s special-motion-to-dismiss procedure conflict with FRCP 56” and were therefore invalid as an effort to alter the requirement of D.C. Code § 11-946, that the Superior Court “conduct its business according to the Federal Rules of Civil Procedure … unless it prescribes or adopts rules which modify those Rules.” The Home Rule Act provides that “[t]he Council shall have no authority to . . . [e]nact any act, resolution, or rule with respect to any provision of Title 11 (relating to organization and jurisdiction of the District of Columbia Courts).” Because the Superior Court had not adopted a rule with the approval of the Court of Appeals that modifies Fed. R. Civ. P. 56, the Court invalidated the discovery limitations in the anti-SLAPP Act.

Congress

Washington Examiner: FEC commissioner says agency ‘weaponized’ against GOP

By Paul Bedard

.....The Federal Election Commission has been “weaponized” to target political foes of the Biden administration, sometimes allowing weak charges to spark long and costly investigations, the second-longest serving member of the panel charged on Wednesday.

“The problem is stark,” said Commissioner James “Trey” Trainor, appointed in 2020 by former President Donald Trump. “It's the growing weaponization of the government to harass and hinder the political participation of our citizenry in the democratic process. The Federal Election Commission has become a weapon,” he told a House oversight committee.

Ed. note: Read Commissioner Trainor's written testimony here.

James Madison Center for Free Speech: James Madison Center for Free Speech Comments to House Ways and Means Committee Regarding the Political Activities of Tax-Exempt Organizations

.....On September 8, in response to a “Request for Information,” the James Madison Center for Free Speech (“JMCFS”) submitted comments to the U.S. House Ways and Means Committee (“Committee”) in support of bright-line IRS standards for tax-exempt organizations in order to rein in the threat to free speech, association, and the right to vote.

The IRS’s current guidance and “facts-and-circumstances” approach to questions invite uncertainty, requiring costly compliance advice for tax-exempt organizations and casting a chill on their participation in public debate and voting, which are basic constitutional rights. The JMCFS urged the Committee to require the IRS to establish bright-line definitions of “political campaign intervention” and the terms “primarily” and “exclusively,” which are used to define when regulation is triggered for 501(c)(3) and 501(c)(4) organizations…

The comments are available here.

Just the News: Feds thwarted probe into possible 'criminal violations' involving 2020 Biden campaign, agents say

By John Solomon

.....The FBI and IRS probed allegations that Joe Biden’s 2020 presidential campaign may have benefitted from “campaign finance criminal violations” by allowing a politically connected lawyer to help pay off Hunter Biden’s large tax debts but agents were blocked by federal prosecutors from further action, according to new information uncovered by congressional investigators.

Biden Administration

National Review: The White House Has Never Had the Power to Police Speech

By Charles C.W. Cooke

.....I regret to inform you that the authoritarians are at it again. In Politico today, Adam Cancryn relates the anguish and frustration that have been felt within Joe Biden’s White House since a federal judge reminded the executive branch that it is bound by the Bill of Rights. “Biden officials have felt handcuffed for the past two years,” Cancryn writes, “by a Republican lawsuit over the administration’s initial attempt to clamp down on anti-vaxxers, who alleged the White House violated the First Amendment in encouraging social media companies to crack down on anti-vaccine posts” — a suit that staff at the White House believe “has limited their ability to police disinformation online.”

To which one must ask: As opposed to what?

Free Expression

New York Times: Britain Passes Sweeping New Online Safety Law

By Adam Satariano

.....Britain passed a sweeping law on Tuesday to regulate online content, introducing age-verification requirements for pornography sites and other rules to reduce hate speech, harassment and other illicit material.

The Online Safety Bill, which also applies to terrorist propaganda, online fraud and child safety, is one of the most far-reaching attempts by a Western democracy to regulate online speech. About 300 pages long, the new rules took more than five years to develop, setting off intense debates about how to balance free expression and privacy against barring harmful content, particularly targeted at children.

Jonathan Turley: Harvard’s Jacinda Ardean Calls on the United Nations to Crack Down on Free Speech as a Weapon of War

.....Jacinda Ardern may no longer be Prime Minister of New Zealand, but she was back at the United Nations continuing her call for international censorship. Ardern is now one of the leading anti-free speech figures in the world and continues to draw support from political and academic establishments. In her latest attack on free speech, Ardean declared free speech as a virtual weapon of war. She is demanding that the world join her in battling free speech as part of its own war against “misinformation” and “disinformation.” Her views, of course, were not only enthusiastically embraced by authoritarian countries, but the government and academic elite.

In her speech, she notes that we cannot allow free speech to get in the way of fighting things like climate change. She notes that they cannot win the war on climate change if people do not believe them about the underlying problem. The solution is to silence those with opposing views. It is that simple.

The States

Rolling Stone: Why Georgia’s Latest Assault on Free Speech Is So Chilling

By Nora Benavidez

.....I’ve worked with protest demonstrators of all kinds throughout my legal career in Georgia. What’s happening around the planned police training facility — referred to by opponents as “Cop City” — is the largest, most sustained attack on free speech since the Civil Rights Movement. It intensified earlier this month, when the state criminally indicted 61 people affiliated with the protest opposing the facility, followed by Atlanta officials challenging city residents attempting to place the construction of the facility on a ballot referendum. The one-two punch is part of a chilling string of retaliatory actions against Cop City protesters, further indicating that officials are willing to use every statutory tool in their arsenal to deny voters an opportunity to make their voices heard.

People United for Privacy: Despite Lawsuits, Arizona Regulators Press on with Anti-Privacy Prop 211

By Brian Hawkins

.....Last year, Arizona voters passed Proposition 211, enacting an extreme nonprofit donor disclosure regime. Under the new law, many nonprofit organizations that discuss public policy and elected officials may be forced to publicly expose their supporters’ names and home addresses to the public. Prop 211 tasked the Arizona Citizens Clean Elections Commission with formulating regulations to interpret and enforce the law’s vague language and invasive disclosure demands. In public comments submitted to the Commission, People United For Privacy (PUFP) advises that rulemaking activity is premature because the law is facing credible legal challenges.

The Commission’s proposed rules address the procedures for investigating nonprofits and enforcing the law. The rules specify the rights of the accused to respond to allegations and detail the Commission’s powers to investigate complaints and issue enforcement orders. Since the law’s approval last November, however, it has been the subject of intense judicial scrutiny, facing two separate legal challenges in Arizona state court and another in federal court.