September 25, 2023

The Courts

Texas Tribune: Federal judge sides with West Texas A&M University president who canceled campus drag show

By William Melhado

.....One of Texas’ most notoriously conservative federal judges issued an opinion this week supporting restrictions to drag shows, which stands apart from many other federal rulings that have struck down similar bans in other states as unconstitutional.

U.S. District Judge Matthew Kacsmaryk said that West Texas A&M University President Walter Wendler acted within his authority when he canceled a campus drag show. Students sued Wendler in March, alleging the president violated their free speech rights by banning a fundraiser featuring drag performers, but Kacsmaryk declined the request for injunctive relief.

In his opinion, Kacsmaryk wrote, at “this point in Free Speech jurisprudence, it is not clearly established that all ‘drag shows’ are categorically ‘expressive conduct.’”

FEC Weekly Digest: Week of September 18 – 22, 2023

.....CREW v. FEC (Case No. 22-3281) On September 20, the U.S. District Court for the District of Columbia issued a Memorandum Opinion and Order, denying Motions to Dismiss by the Commission and by Intervenor American Action Network and ordering that the case be stayed pending the decision of the D.C. Circuit in CREW v. American Action Network.

Courthouse News: Ex-lab researcher asks Seventh Circuit to revive social media free speech claims against UW-Madison

By Dave Byrnes

.....The Seventh Circuit considered the extent of social media free speech rights on Thursday morning in a case pitting the University of Wisconsin–Madison against one of its own alumni.

The alumna, Madeline Krasno, once worked in the university's primate research lab but came to oppose animal testing based on the reportedly inhumane conditions the creatures in the lab suffer. She took to criticizing the UW-Madison's animal testing practices on its social media pages, like Facebook and Instagram, and filed suit in federal court in February 2021 after the university began censoring her and others' less-than-flattering comments.

Courthouse News: Artists aim to bring back lawsuit over removal of mural honoring police shooting victim

By Kayla Goggin

.....An attorney for a group of artists and curators asked an 11th Circuit panel on Friday to overturn a federal judge’s ruling in favor of Miami Beach city officials accused of violating the First Amendment when they removed from an art exhibit a portrait of a Black man who was fatally shot by city police.

Congress

Washington Post: Misinformation research is buckling under GOP legal attacks

By Naomi Nix, Cat Zakrzewski and Joseph Menn

.....Academics, universities and government agencies are overhauling or ending research programs designed to counter the spread of online misinformation amid a legal campaign from conservative politicians and activists who accuse them of colluding with tech companies to censor right-wing views.

The escalating campaign — led by Rep. Jim Jordan (R-Ohio) and other Republicans in Congress and state government — has cast a pall over programs that study not just political falsehoods but also the quality of medical information online.

Facing litigation, Stanford University officials are discussing how they can continue tracking election-related misinformation through the Election Integrity Partnership (EIP), a prominent consortium that flagged social media conspiracies about voting in 2020 and 2022, several participants told The Washington Post. The coalition of disinformation researchers may shrink and also may stop communicating with X and Facebook about their findings.

DHS

Fox News: New docs reveal how DHS argued they have authority to censor 'misinformation'

By Brianna Herlihy

.....New documents obtained through Freedom of Information Act (FOIA) requests show that the Department of Homeland Security (DHS) argued that the agency has authority in regulating "misinformation, disinformation, and malinformation" despite the disbandment of the agency's highly criticized Disinformation Governance Board.

In heavily redacted memos obtained by Americans for Prosperity Foundation (AFPF) and reviewed exclusively by Fox New Digital, the agency appeared to circulate ahead of the launch of the disinformation board justification that DHS has regulatory or statutory authority in the "the MDM Space" – short for "misinformation, disinformation, and malinformation.

Free Expression

RealClear Opinion Research: POLL: Is Censorship a Partisan Issue?

By Carl M. Cannon

.....A new poll on censorship by RealClear Opinion Research shows that 90% of voters in the United States express support for the Founders’ curbs on government power…

For those who oppose censorship and put a premium on the free flow of ideas, that’s the good news. But there is bad news, too. Inevitably in our nation’s current hyper-partisan political environment, when one bores down on this subject, deeply divergent perspectives emerge — partisan differences.

Painting with a broad brush, Democrats grant significantly more deference to government than do Republicans when it comes to regulating free speech. This wasn’t the only fault line revealed by the RCP survey.

Some of what is dividing these differences is generational, as Millennials and Gen-Z have come of age in a digital age environment in which reasonable expectations of privacy seem a relic of the past. “Those under 30 are most open to censorship by the government,” Kimball noted, adding that 42% of this cohort deem it “more important” to them that the government protect national security than guard the right to free expression. Among those over 65 years old, the corresponding percentage was 26%.

Candidates and Campaigns

The Hill: Fix elections by allowing unlimited campaign cash

By Richard Protzmann

.....The fundraising environment for American elections has produced opportunities for hyperpartisan, divisive candidates and, except for the safest voting districts, these candidates have proven largely unelectable. Notwithstanding, these candidates generate enthusiasm with combative crisis rhetoric within the base and raise a lot of money in small dollar donations for themselves and friendly super PACs. Hundreds of millions of dollars get spent to propagate their rhetoric and drown out substantive platforms and generally electable people.

What enables this is, ironically, the very legislation that was initially intended to address the problem. The Federal Election Campaign Act and the Bipartisan Campaign Reform Act have been disasters for our elections by incentivizing super PACs and forcing campaigns to constantly dial for dollars in order to keep pace with election cycles.

While these laws’ intent was to create transparency and address the role of dark money and the influence of wealthy donors, the outcomes have been the opposite. While capping spending and contributions are noble in theory, FECA and BCRA provide a litany of loopholes, helping to create a flourishing environment for super PACs and more dark money, obscuring or who is being spending money where.

Voters, regulators and campaigns are left with an impossible regulatory environment and perverse fundraising incentives. It is time to revisit these restrictions and ultimately eliminate them.

The States

91.5 KJZZ: Elections commission adds new disclosure requirements for political ads on air and in print

By Howard Fischer, Capitol Media Services

.....The Citizens Clean Elections Commission is moving to ensure the next time you see a political commercial you won't have to guess who really is paying for it.

More to the point, you won't have to squint or speed read.

Existing laws already say that political ads need a disclosure of who bought the airtime. Ditto newspaper ads, billboards and mailers.

But a new rule adopted this past week adds the requirement that those disclaimers actually spell out the three largest sources of funds that bought the commercial. Gone will be the ability to simply tell viewers that the ad they are watching was funding by a group identified only as something like "Arizonans for a Better Arizona."

More to the point, the rule details exactly how big the disclosure has to be and how long it needs to be visible.

Tom Collins, the commission's executive director, said the panel is not acting entirely on its own.

He pointed out that voters in November approved a ballot measure designed to unmask certain political organizations who, until now, had been given permission by state lawmakers to hide the true sources of their funds.